September 3, 2013
KATHY SWEET-SPRINGS, Appellant,
NEW JERSEY DEPARTMENT OF CHILDREN AND FAMILIES, DIVISION OF YOUTH AND FAMILY SERVICES, Respondent.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 28, 2013
On appeal from the New Jersey Division on Civil Rights, Docket No. EL07WG-60310-H.
Kathy Sweet-Springs, appellant pro se.
John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Division on Civil Rights (Andrea M. Silkowitz, Assistant Attorney General; Farng-Yi D. Foo, Deputy Attorney General, on the brief).
Before Judges Waugh and Haas.
Appellant Kathy Sweet-Springs appeals from the final determination of the Director of the Division on Civil Rights (Director) finding no probable cause to substantiate appellant's complaint that her employer, the New Jersey Department of Children and Families (DCF), had discriminated against her on the basis of her race and disability. We affirm.
Appellant was first employed by DCF in 2004 as a Family Service Specialist II within the Division of Youth and Family Services in the Newark II local office. After completing her training period, appellant was given the title of Family Service Specialist I.
In August 2007, appellant voluntarily transferred to the Atlantic West office in Mays Landing. In March 2008, DCF offered appellant the opportunity to transfer to the Mercer North office in Lawrenceville to become a litigation specialist. Appellant accepted the transfer. In her new position, appellant reported to Kathleen Hoefler, who was the supervisor of the litigation unit.
Appellant had attendance problems in her new position and Hoefler met with her on May 13, 2008 to discuss them. By that date, appellant had already used sixteen sick days for the calendar year. After an employee uses thirteen sick days, DCF policy requires that he or she provide medical verification for all future absences due to illness. Hoefler reminded appellant of this policy at the meeting.
Six days later, however, appellant was absent from work and did not provide the required documentation. Four days later, appellant was again absent and she never returned to work after that date. On June 19, DCF's payroll services manager sent appellant a letter inquiring about her absence and directing her to supply medical documentation as to the reason for missing work. The manager also advised appellant that a failure to report to work for five consecutive days was "considered job abandonment and may result in termination of employment." On July 3, appellant sent in a medical note asking that she be excused from work from July 1 to August 1, 2008. No documentation was provided regarding her absence from May 23 to June 30.
Appellant did not return to work on August 1. She also failed to advise DCF that she was not going to return. On August 11, DCF instituted disciplinary action against appellant because she had missed work for five consecutive days without permission. Following a departmental hearing, DCF terminated appellant from employment in a final disciplinary action dated October 14, 2008. Her termination was effective August 1, 2008.
On October 30, 2008, appellant filed a verified complaint against DCF with the Division on Civil Rights (Division). She alleged DCF had engaged in unlawful employment discrimination because of her race (African-American) and physical disability. Specifically, appellant alleged that, when she first transferred to the litigation unit in Lawrenceville, she was required to "report" to an employee who was her subordinate. Appellant asserted that similarly situated employees, who were not African-American, were not supervised by their subordinates. Appellant also claimed she was disabled due to an "injured back, injured hip, [and] depression" and that DCF refused to accommodate her disability by granting a request she allegedly made on May 14, 2008 to transfer to Atlantic City.
DCF denied the allegations and the Division assigned an investigator to examine appellant's claims. The investigator spoke to Hoefler, who confirmed that she was appellant's supervisor. Hoefler explained that, when appellant first joined the litigation unit, she told appellant that, because the person who previously held the position had retired, appellant could seek information about the position from Katherine Shoemaker, an experienced paralegal in the unit. However, at no time was Shoemaker made appellant's supervisor. The investigator spoke to Shoemaker who confirmed she had never been asked to supervise appellant and had never done so. Another co-worker in the unit, Veronica Barrett, told the investigator that Shoemaker never acted as appellant's supervisor.
With regard to appellant's alleged disability, the investigator found no record of appellant ever making a request for a transfer from Lawrenceville to Atlantic City while she was still working for DCF. Appellant did not make such a request until September, 2008, almost four months after she had last appeared for work and a month after she was effectively removed from employment.
The investigator interviewed appellant several times and he shared all of the information he had assembled with appellant. He also gave appellant the opportunity to provide additional information. Appellant failed to provide any further relevant evidence to support her allegations. The investigator concluded:
The investigation did not support [appellant's] allegation of discrimination based on race and disability. The investigation disclosed that [appellant] was not required to report to any subordinate because of her race; in fact, the investigation did not establish that [appellant] was asked to report to a subordinate at all. Additionally, the investigation did not support [appellant's] allegation that she was denied a transfer as a reasonable accommodation of her disabilities, or that she was discharged because of her disabilities. Instead, the investigation revealed that [appellant] made no request for an accommodation based on disability during her tenure with [DCF] and that [appellant] was discharged because of a series of unauthorized and unexcused absences.
The investigator recommended the case be "closed" based on "No Probable Cause."
By order of June 30, 2011, the Director evaluated the investigation, agreed there was no probable cause to credit the allegations of the complaint, and closed the file. This appeal followed.
On appeal, appellant disputes the investigative findings and asserts that the Director should have concluded that there was probable cause to support her allegations. We disagree.
Our review of an administrative agency decision is limited. Clowes v. Terminex Int'l, Inc., 109 N.J. 575, 587 (l988). "The court must survey the record to determine whether there is sufficient credible competent evidence in the record to support the agency head's conclusions." Ibid. "'[A]n appellate court 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.'" In re Taylor, 158 N.J. 644, 657 (1999) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 581 (l980) (modification in original)).
We have carefully reviewed appellant's arguments in light of the record and applicable law and find them to be without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E).
Appellant's arguments basically seek to have us re-evaluate the evidence and reach a conclusion contrary to that of the Director. To that end, appellant has emphasized what she perceives to be inconsistencies and errors in the investigator's findings. However, it is not our function to canvas the facts in order to decide what conclusion we might have reached if we were deciding the matter in the first instance. Clowes, supra, 109 N.J. at 588. The report and recommendation adopted by the Director are neither arbitrary, nor capricious, nor unreasonable. To the contrary, the investigator performed a thorough investigation, interviewing appellant, Hoefler and other DCF employees on several occasions. The record clearly reflects that he provided appellant more than ample opportunity to present her case and rebut the testimony and evidence presented by DCF in defense. We are satisfied the record provides "sufficient credible evidence" to support the Director's conclusions. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965); R. 2:11-3(e)(1)(D).