In the Matter of Anthony Hearn, Department of Education DOP Docket No. 2005-1341 (Merit System Board, decided October 10, 2007) The appeal of Anthony Hearn, an Education Program Development Specialist 1 with the Department of Education (DOE), of the determination of the Commissioner of Education, stating that the appellant violated the New Jersey State Policy Prohibiting Discrimination in the Workplace (State Policy), was heard by Administrative Law Judge Jeff S. Masin (ALJ), who rendered his initial decision on April 13, 2007. Exceptions were filed on behalf of the appointing authority, and cross exceptions were filed on behalf of the appellant. Having considered the record and the attached ALJ s initial decision, and having made an independent evaluation of the record, the Merit System Board (Board), at its meeting on October 10, 2007, accepted and adopted the Findings of Fact as contained in the initial decision and the ALJ s recommendation to grant the appellant s appeal and return him to his former unclassified title of Manager 1, Education. However, the Board did not adopt the ALJ s recommendation to award the appellant back pay and counsel fees. DISCUSSION Crystal Feliciano, an African American, filed a complaint against the appellant, a Caucasian, alleging racial discrimination and hostile work environment in violation of the State Policy. Upon conclusion of the investigation conducted by DOE s Office of Equal Employment Opportunity/Affirmative Action, the appointing authority found that the appellant had violated the State Policy. Specifically, in a letter dated September 7, 2004, the appointing authority determined that the appellant s actions violated the State Policy by treating employees less favorably based upon their race, thereby creating a hostile work environment. In a separate letter, also dated September 7, 2004, the Director of Human Resources advised the appellant that supervisory responsibilities were being removed from his duties, and that this would result in a demotion from his then current title of Manager 1, Education, to Planning Associate 1, School Finance, effective September 18, 2004. 1 The appellant was also advised that he would be required to attend the Valuing Diversity course offered by the Department of Personnel s Human Resource Development Institute. The appellant then appealed to the Board. It is noted that the title of Manager 1, Education, is allocated to the unclassified service and Planning Associate 1, School Finance, is in the non-competitive division of the career service. Additionally, the appellant later received a regular appointment, 1 Although the letter advising the appellant of his title change indicated that his appointment date was September 13, 2004, Department of Personnel records indicate September 18, 2004 as the effective date.
effective July 23, 2005, as an Education Program Development Specialist 1, which is a non-competitive title in the career service and has the same class code (30) as the Planning Associate 1, School Finance, title. Following a review of the written record, the Board granted a hearing at the Office of Administrative Law (OAL) in order to resolve multiple factual disputes presented in the case. See In the Matter of Anthony Hearn (MSB, decided July 13, 2005). Particularly, the Board noted its concern that although the appellant was found to have required only Feliciano to read materials and prepare a written summary, the appellant provided a seemingly reasonable non-discriminatory explanation for these actions. In his initial decision, the ALJ sets forth the testimony of the witnesses, including the appellant s testimony. The appellant denied the allegations against him and provided non-discriminatory reasons for his actions. Moreover, witnesses testified that the appellant spoke quickly, could be abrasive, rude, sharp, abrupt and loud. Based on the testimony and evidence, the ALJ determined that the appellant did not violate the State Policy. The ALJ found the appellant credible. Moreover, the ALJ indicated that although Feliciano and other witnesses believed that the appellant acted out of racial animus, the record did not support that the appellant s actions were motivated by race. The ALJ emphasized that the appellant lacked supervisory and interpersonal skills, but that his managerial style could not be characterized as racially motivated. Therefore, the ALJ recommended that the finding that the appellant violated the State Policy be purged from his personnel record and he be awarded back pay and counsel fees. In regard to the latter, the ALJ found sufficient cause for the award and stated that the appellant has successfully shouldered the unenviable burden of proving [his case]... and an award for counsel fees, as such is fully appropriate given the nature of the allegations and findings below, the burden placed on Hearn to clear his name, and the significant costs involved to do so in a case in which, unlike those who merely defend against an agency s charges... he had to take on the burden of proving his innocence. Additionally, the ALJ concluded that the appellant must be returned to his unclassified title as a Manager 1, Education. In its exceptions, the appointing authority contends that the ALJ erroneously used the standard articulated in federal and State law to find that the appellant s actions were not discriminatory. Moreover, it maintains that the record in the matter supported the fact that the appellant violated the State Policy and his testimony to the contrary was not credible. Additionally, the appointing authority contends that the witnesses, particularly Feliciano, did not have any reason to fabricate the allegations and the ALJ erred in not sustaining Feliciano s complaint. The appointing authority also argues that counsel fees should not be awarded in discrimination cases. It contends that the ALJ s reasoning that the appellant shouldered the burden of proof should not be the basis for finding sufficient cause
to award counsel fees. Further, the appointing authority maintains that back pay should not be awarded as the record clearly demonstrates that the appellant, even if found not to have violated the State Policy, was properly removed from a supervisory position. It also urges that the appellant s request for reimbursement of vacation days for attending the OAL hearing be denied. In response, the appellant relies on the ALJ s decision and requests that the Board affirm the decision. Additionally, he submits a certification for back pay, counsel fees, and reimbursement of lost vacation time due to his attendance at OAL and his appointment to the career service. In regard to the latter, the appellant states that as an unclassified manager, he was entitled to 22 vacation days per year and when he was appointed to the career service, he only received 15 vacation days and three administrative leave days. Upon its de novo review of the record, the Board agrees with the ALJ that the credible evidence did not support a violation of the State Policy. The ALJ thoroughly analyzed the allegations of Feliciano with the evidence before him and assessed the credibility of the parties and found that the appellant did not subject Feliciano or other minority co-workers to racial discrimination. The appellant s testimony as to the reasons for his actions was found to be credible. In this regard, the Board acknowledges that the ALJ, who has the benefit of hearing and seeing the witnesses, is generally in a better position to determine the credibility and veracity of the witnesses. See Matter of J.W.D., 149 N.J. 108 (1997). [T]rial courts credibility findings... are often influenced by matters such as observations of the character and demeanor of the witnesses and common human experience that are not transmitted by the record. See In re Taylor, 158 N.J. 644 (1999) (quoting State v. Locurto, 157 N.J. 463, 474 (1999) ). Additionally, such credibility findings need not be explicitly enunciated if the record as a whole makes the findings clear. Id. at 659 (citing Locurto, supra). The Board appropriately gives due deference to such determinations. However, in its de novo review of the record, the Board has the authority to reverse or modify an ALJ s decision if it is not supported by the credible evidence or was otherwise arbitrary. See N.J.S.A. 52:14B-10(c); Cavalieri v. Public Employees Retirement System, 368 N.J. Super. 527 (App. Div. 2004). Nevertheless, upon its review of the entire record, the Board finds that there is sufficient evidence in the record to support the ALJ s credibility determinations. Accordingly, the Board does not find the appointing authority s exceptions to be persuasive. Moreover, as to the standard of review, the Board must determine whether the State Policy, codified in N.J.A.C. 4A:7-3.1, was violated. The Board notes that the State Policy sets a lower threshold for finding a violation than that found in federal or State law. Prohibited conduct need not reach the level of severe or pervasive as under federal or State law to constitute a violation of the State Policy. This is because the goal of the State Policy is to prevent and remediate all instances of discrimination/harassment to ensure a smoothly functioning and harmonious
workplace. See e.g., In the Matter of Dr. Cordelia Twomey (MSB, decided August 29, 2007) and In the Matter of Iraida Afanador (MSB, decided January 31, 2007). In this case, although the ALJ referenced federal and State discrimination laws, he properly reviewed whether the State Policy was violated. As to the appellant s remedy, the Board agrees with the ALJ that the appellant is entitled to have his personnel record purged of a violation of the State Policy and he be returned to his unclassified title as a Manager 1, Education. The Board emphasizes that as a result of the State Policy violation, the appellant was improperly appointed to the career service. Thus, the appellant s regular appointments as a Planning Associate 1, School Finance, and Education Program Development Specialist 1 are rescinded and the appellant is considered not to hold permanent status. Moreover, the ALJ awarded the appellant back pay and counsel fees. However, the Board disagrees with these particular remedies. N.J.S.A. 11A:2-22 states that the Board may award back pay, benefits, seniority and reasonable counsel fees to an employee as provided by rule. See DelRossi v. Department of Human Services, 256 N.J. Super. 286, 292 (App. Div. 1992). In this regard, N.J.A.C. 4A:2-1.5(b) provides that: Back pay, benefits and counsel fees may be awarded in disciplinary appeals 2 and where a layoff action has been in bad faith. See N.J.A.C. 4A:2-2.10. In all other appeals, such relief may be granted where the appointing authority has unreasonably failed or delayed to carry out an order of the Commissioner or Board or where the Board finds sufficient cause based on the particular case. In non-disciplinary appeals and layoff matters, the New Jersey Superior Court, Appellate Division, and the Board have found sufficient cause to award back pay and counsel fees in specific situations where the adverse action at issue was motivated by bad faith or invidious reasons. See e.g., In the Matter of James E. Ganley and Code Enforcement Officer, City of Jersey City, Docket No. A-3234-02T2 (App. Div. June 15, 2004); Michael Kudrick v. City of Perth Amboy, Docket No. A- 4007-97T2 (App. Div. April 15, 1999); and In the Matter of David Csimbok (MSB, decided April 24, 2001). However, appellants have been denied back pay and/or counsel fees where administrative error was found rather than bad faith. See e.g., Kathryn E. Clark v. New Jersey Department of Personnel, Docket No. A-5448-93T2) (App. Div. April 28, 1995); In the Matter of Kevin Nasatka (MSB, decided November 3, 2005); In the Matter of Thomas D Angelo (MSB, decided October 22, 2003); In the 2 The Board previously noted that the appellant s change in his appointment from Manager 1, Education 1, in the unclassified service to Planning Associate 1, School Finance, a regular appointment in the non-competitive division of the career service, was not a disciplinary demotion as designated by the appointing authority. See Hearn, supra. The appellant was serving in the unclassified service and did not have underlying permanent status. As such, he was not subject to the tenure provisions of Title 11A of the New Jersey Statutes or Title 4A of the New Jersey Administrative Code.
Matter of Catherine M. Thompson (MSB, decided August 31, 1999); Afanador, supra. In the present matter, the appellant has not shown that the actions of the appointing authority in finding a violation of the State Policy and terminating his unclassified position were made in bad faith. An investigation of Feliciano s complaint was properly conducted and the appointing authority concluded, albeit erroneously, that the appellant violated the State Policy. The record does not reflect that the appointing authority s conclusion was made with invidious motivation. Therefore, the appellant is not entitled to back pay or counsel fees. See e.g., In the Matter of Daniel Soto, Fire Fighter, City of Hoboken, Docket No. A-0404-03T5 (App. Div. Nov. 8, 2004) (Award of back pay and counsel fees is not mandated in non-disciplinary or layoff appeals). See also, In the Matter of Patrick M. Tortorello, Jr., Docket No. A-4460-02T3 (App. Div. June 1, 2004); In the Matter of Michael Acosta (MSB decided June 9, 2004); In the Matter of Michael Piacenza (MSB, decided January 28, 2004). Moreover, as to reimbursement of vacation leave, N.J.A.C. 4A:6-1.20(b) provides that when appearance before a judicial or administrative body is not part of the job function, a State employee in the career or senior executive service shall be granted time off without pay to appear at a proceeding to which he or she is a party. However, an employee is entitled to time off with pay to attend his or her Workers Compensation proceeding. 3 Thus, pursuant to this rule, the appellant, who was serving in the career service at the time, is not entitled to reimbursement of his vacation leave to attend the OAL proceedings. Moreover, the Board does not have jurisdiction to review an unclassified employee s entitlement to vacation leave. See N.J.S.A. 11A:6-2 and N.J.A.C. 4A:6-1.1(b) (In State service, the regulations pertaining to leave apply only to career service employees, unless otherwise indicated). Thus, reimbursement of lost vacation days to the appellant would be considered compensation, and as indicated above, the appellant is not entitled to back pay. However, since the appellant is being returned to his managerial title, his vacation leave for 2007 could be credited to him by the appointing authority. Finally, regarding the appellant s salary, the Board leaves it to the appointing authority to calculate the proper amount upon the appellant s reinstatement to Manager 1, Education. Accordingly, it is ordered that this appeal be granted, but that back pay and counsel fees be denied. ORDER The Board orders that this appeal be granted. The Board further orders that the appointing authority remove the finding of a violation the State Policy from Anthony Hearn s personnel record. Additionally, it is ordered that the appellant s regular appointments as a Planning Associate 1, School Finance, and Education 3 It is noted that, N.J.A.C. 4A:6-1.20(c) provides that State unclassified employees may be granted such leave with or without pay at the discretion of the appointing authority.
Program Development Specialist 1 be rescinded and he be returned to his unclassified title as a Manager 1, Education. Moreover, it is ordered that back pay and counsel fees be denied pursuant to N.J.A.C. 4A:2-1.5(b). This is the final administrative determination in this matter. Any further review should be pursued in a judicial forum.