May 28, 2013
IN THE MATTER OF T.M., DEPARTMENT OF EDUCATION.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 7, 2013
On appeal from the Civil Service Commission, CSC Docket No. 2011-3505.
Walter R. Bliss, Jr., argued the cause for appellant T.M.
Caroline Jones, Deputy Attorney General, argued the cause for respondent Civil Service Commission (Jeffrey S. Chiesa, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Jones, on the brief).
Before Judges Yannotti and Harris.
Appellant T.M. appeals from the April 5, 2012 decision of the Civil Service Commission (the Commission), which upheld the determination of the Department of Education (the Department) finding T.M. in violation of the New Jersey State Policy Prohibiting Discrimination in the Workplace (the State Policy), N.J.A.C. 4A:7-3.1. Because the record reveals "material and controlling dispute[s] of fact . . . that can only be resolved by a hearing, " N.J.A.C. 4A:2-1.1(d), and no such hearing was conducted, we reverse and remand for further proceedings.
In November 2010, T.M. had been employed by the Department for eight years. Among his job duties was the improvement of educational opportunities for urban youth. In that month, T.M. volunteered to represent the Department at a college fair for high school students, which was to be conducted at a county community college.
On November 15, 2010, T.M. attended the event. At the close of the day's proceedings, an incident occurred that is the focus of this appeal. According to a November 17, 2010 handwritten statement authored by J.T., a college admissions representative in attendance,
[a]t the closing of the . . . College Fair, I was approach[ed] by a volunteer. . . . As me and my co-worker (O.A.) were packing up, . . . a man simply asked how the turnout was at the college fair to start small talk. The man told me to tell my co-worker to "get off her knees." I was unsure what he said at first so I asked him to repeat himself. He said[, ] "tell her to get off her knees, because she might stay that way." Then he walked off. I am not sure what he exactly meant by that but I do know it was not professional or appropriate! I haven't met this man or know anything about him. I just hope he knows he cannot say things like that to anybody. If he meant it in a "non-sexual" way, then he should have explained himself.
J.T. later confirmed this account in an interview with a representative of the Department, adding only that her co-worker O.A. was at the time "kneeling down putting material in our equipment bags" and did not overhear the encounter.
After J.T. told O.A. what happened, they reported the incident to their supervisor. Afterwards, the matter came to the attention of the sponsor of the college fair, and to several Department employees, including an EEO/Affirmative Action officer named M.W. On November 16, 2010, T.M. briefly spoke with J.B., a Department managerial supervisor, to initially discuss the matter. At that time, T.M. allegedly learned "that a formal complaint of a 'sexually harassing nature' had been leveled against him, " but no other details were given. Instead, T.M. was ordered to report to the Department's "EEO/AA office upon [his] return."
According to the written report of M.W., when she asked T.M. on November 16, 2010, if he made the alleged remark, he responded, "I have no clue —— I do not know what you are referring to —— I don't know the young woman you are referring to." M.W. characterized T.M.'s demeanor at that time as "very defensive" and described T.M.'s tone of voice as "very hostile."
On November 17, 2010, T.M. spoke with J.M., a different Department supervisor, about the matter. J.M.'s written report of that discussion indicated that "[T.M.]'s initial response was that he hadn't said or done anything." However, "[o]ver the course of the next [twenty] minutes or so, [T.M.] revealed that he commented to one of the women about her partner being on her knees on the floor. He told me that his comments were only out of concern for the woman's well-being."
In a November 23, 2010 interview with M.W., T.M. refused to orally answer any questions, but he did agree to provide M.W. with a written statement of his side of the incident. In due course, T.M. provided M.W. with an undated handwritten statement, which contained the following version of the encounter:
At approximately 1:00 p.m. I was exiting the college's gymnasium when most of the recruiters started clapping. A female recruiter, who was also clapping, stepped into my pathway. I asked her[, ] ["]why were they clapping?" She replied[, ] "it was just something the recruiters decided to do at the end of each college fair.["] At that time, I notice[d] a recruiter to my right kneeling behind a table, she appeared to have slipped or [was] falling. I asked the recruiter if the lady was okay? She asked me[, ] "what did I say?" I motioned in the direction of the lady and said, "[d]oes the lady kneeling behind the table need help getting up?" The recruiter replied[, ] "oh no, she's okay." I continued walking towards the exit and left the building.
The Department continued its internal investigation of the what happened at the college fair. Ultimately, then-Acting Commissioner Christopher D. Cerf issued a February 4, 2011 letter to T.M., finding the following:
[I]t has been substantiated that you have violated the [State Policy]. Regardless [of] intent, the comment was considered by the Complainants to be inappropriate and sexually suggestive. You further violated the State [P]olicy by refusing to cooperate in the investigation of the complaint.
Therefore, I am directing the following administrative actions be taken regarding the inappropriate comment made to the [C]omplainants:
1. You must write a letter of apology to both Complainants with a copy forwarded to [the sponsor of the college fair];
2. You will not be allowed to volunteer at future college fairs or similar activities as a representative of the Department of Education; and
3. You will be scheduled for counseling on the State Policy by the Department's Equal Employment Opportunity/AA Officer and the Director of the Division of EEO/AA.
T.M. immediately challenged the Acting Commissioner's determination, and appealed to the Commission. On March 14, 2011, John Tartaglia, a Commission "Personnel & Labor Analyst, " wrote to T.M. and the Department that "[i]t is anticipated that a decision in this matter will be rendered on the basis of written argument and documentation." The letter reminded the parties "that discrimination investigations are confidential and, pursuant to N.J.A.C. 4A:7-3.1(i) and N.J.A.C. 4A:7-3.2(m), information regarding this matter may only be disclosed to the Commission and the parties and may not be shared or discussed with others."
After the parties submitted further written materials to the Commission, Tartaglia issued a December 23, 2011 letter to the Department seeking "further information . . . in order to clarify the record." Specifically, Tartaglia noted the following:
[T]here is nothing in the current record articulating precisely what the [Department's] investigation found that [T.M.] said in the November 15, 2010 incident or how the investigation determined what was actually said. In other words, it is not clear what particularly was said by [T.M.]. Absent such information, it is impossible for the [Commission] to discern whether the statement violated the State Policy.
On February 3, 2011, M.W. responded to Tartaglia on behalf of the Department. In her six-page letter with seven attachments, M.W. outlined the Department's investigation by summarizing the statements of the persons involved. M.W. reiterated her view that T.M. was "angry and his demeanor was hostile[.]" She added,
throughout the investigation [T.M.] demonstrated hostility towards the process as witnessed by the Affirmative Action Specialist who sits in on all interviews. He ignored the State Policy requirement to maintain confidentiality and discussed the content of the incident with at least one other co-worker who by the way, advised him to cooperate with the process. Beginning with the first interview, he was vehement about not having any knowledge of the complaint; that he didn't have a clue.
. . . .
The appellant's written statement was completely different from that of the Complainants. The . . . Complainants were interviewed individually and there was no reason to question their credibility.
. . . .
The comment was considered by the Complainants to be inappropriate, offensive and contained sexual innuendos. They stated that they were uncomfortable with [T.M.] being present at the fair. The investigation concluded that [T.M.'s] behavior was in violation of the State Policy. Therefore, the [D]epartment stands by its original decision.
T.M. responded to M.W.'s letter. He noted that the letter did not "attempt to quote or paraphrase the 'comment' in question, " and failed to "relate how application of the State Policy  [led] to the conclusion that the unrevealed words in question violated that [p]olicy." T.M. further outlined his version of events:
While talking in passing to a female recruiter, a recruiter to my right was kneeling behind a table as if she had fallen or slipped. I asked the recruiter if the lady was okay? She asked me[, ] ["]what did I say?["] I motion[ed] in the direction of the lady and said, ["]Does the lady kneeling behind the table need help getting up?["].
On April 5, 2012, the Commission rendered its final decision. The Commission acknowledged the disparate versions of the events of November 15, 2010, as well as the controversy surrounding T.M.'s level of cooperation in the Department's investigation. Nevertheless, the Commission concluded that "[T.M.] clearly admitted that he made a comment about a woman being on her knees at the college fair, " and "[b]ased on the nature of the complaint and the fact that [T.M.] admitted that he had commented about a woman being on her knees, it is clear that [T.M.] made an inappropriate comment." Furthermore, notwithstanding T.M.'s protestations that his comment was only addressed to the woman's well-being, "[t]he comment clearly contained sexual innuendo." Accordingly, after finding the Department's investigation was "thorough and impartial, " the Commission determined that T.M. violated the State Policy, and rejected his appeal. This appeal followed.
Notwithstanding the provocative core of the dispute between T.M. and the Department regarding the State Policy, this appeal turns on the Commission's fidelity to N.J.A.C. 4A:2-1.1(d). The administrative regulation provides the following: "Except where a hearing is required by law, this chapter or N.J.A.C. 4A:8, or where the Civil Service Commission finds that a material and controlling dispute of fact exists that can only be resolved by a hearing, an appeal will be reviewed on a written record." Id . Because "material and controlling dispute[s] of fact exist that can only be resolved by a hearing, " the Commission's decision is unsustainable.
We recognize our limited scope of review of state administrative agency decisions. Makutoff v. Bd. of Review & Soc'y. Gen., 427 N.J.Super. 218, 223 (App. Div. 2012) (citing In re Stallworth, 208 N.J. 182, 194 (2011)). Nonetheless, we can have little confidence in the decisions of state agencies if they do not follow their own rules.
Incontestably, T.M. starts out with no mandatory right to a hearing. N.J.S.A. 11A:2-6(a) requires the Commission to conduct hearings only in cases involving removal, suspension, fine, disciplinary demotion, or termination at the end of the working test period for unsatisfactory performance of public employees. Aside from these circumstances, there is no statutory mandate for T.M.'s entitlement to a hearing. The State Policy itself provides for no such process. See N.J.A.C. 4A:7-3.2(m)(2) ("The [Commission] shall decide the appeal on a review of the written record or such other proceeding as it deems appropriate. See N.J.A.C. 4A:2-1.1(d).").
However, the State Policy's express reference to N.J.A.C. 4A:2-1.1(d) is recognition that in certain instances a hearing is required. The factual landscape in the present case plainly reveals a need for a hearing. A conclusion as to the content of T.M.'s statement depends upon which witness is believed, making it impossible to determine whether T.M. violated the State Policy without first resolving which version is accurate. The most basic finding —— what did T.M. say? —— is in sharp dispute, and the Commission never determined what he said. Although Tartaglia recognized, after a few months of review, that "there is nothing in the current record articulating precisely what the [Department's] investigation found that [T.M.] said in the November 15, 2010 incident, " the Commission erroneously assumed the omission had been addressed by M.W.'s February 3, 2011 letter. We have searched in vain for the Commission's conclusion as to the exact words spoken by T.M. Absent that essential finding, the record is both incapable of effective review and insufficient to sustain a State Policy violation.
The plain language of N.J.A.C. 4A:2-1.1(d) —— "a material and controlling dispute of fact exists that can only be resolved by a hearing" —— militates inexorably in favor of a hearing. Furthermore, regardless of the subjective states of mind of the participants, which may or may not be relevant for State Policy purposes, there are credibility issues that can only be addressed by a first-hand observation and evaluation of the witnesses. See In re Taylor, 158 N.J. 644, 656 (1999) (recognizing deference is appropriate to administrative decisions where, among other things, due regard is given to the "opportunity of the one who heard the witnesses to judge of their credibility"). The Commission's reliance upon the written record in this case was a mistaken exercise of discretion.
We reject T.M.'s alternate argument that even if he spoke the words attributed to him by J.T. they are lacking any sexual content. In the absence of a finding of exactly what T.M. said, the circumstances of its utterance, and an examination of the totality of the circumstances, T.M.'s arguments are premature. Nevertheless, we do not subscribe to the contention that, as a matter of law, speaking the words, "tell her to get off her knees, because she might stay that way" could not possibly violate the State Policy. Rather, T.M.'s arguments must await the results of the remand proceedings for any further analysis.
Reversed and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.