                               NOT FOR PUBLICATION WITHOUT THE
                              APPROVAL OF THE APPELLATE DIVISION
       This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
    internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                       SUPERIOR COURT OF NEW JERSEY
                                                       APPELLATE DIVISION
                                                       DOCKET NO. A-4016-17T2

IN THE MATTER OF J.E., JR.,1
DEPARTMENT OF
TRANSPORTATION.


                  Submitted October 8, 2019 – Decided October 31, 2019

                  Before Judges Gilson and Rose.

                  On appeal from the New Jersey Civil Service
                  Commission, Docket Nos. 2018-766, 2018-863 and
                  2018-866.

                  J.E., Jr., appellant pro se.

                  Gurbir S. Grewal, Attorney General, attorney for
                  respondent Civil Service Commission (Donna Arons,
                  Assistant Attorney General, of counsel; Pamela N.
                  Ullman, Deputy Attorney General, on the statement in
                  lieu of brief).

                  Gurbir S. Grewal, Attorney General, attorney for
                  respondent Department of Transportation (Donna
                  Arons, Assistant Attorney General, of counsel; Ryne
                  Anthony Spengler, Deputy Attorney General, on the
                  brief).


1
    We use initials to protect the confidentiality of the parties.
PER CURIAM

      Petitioner J.E. appeals a final decision of the Civil Service Commissi on

(Commission), upholding a determination by the Department of Transportation's

(DOT) Division of Civil Rights and Affirmative Action (Division) that

petitioner violated the State Policy Prohibiting Discrimination in the Workplace

(State Policy or policy), N.J.A.C. 4A:7-3.1. We affirm.

                                       I.

      This appeal has its genesis in discrimination and retaliation allegations

made by Y.N., an African American DOT employee, against petitioner and three

other DOT employees. Petitioner, who is Caucasian, was Y.N.'s supervisor in

the DOT's Bureau of Structural Evaluation and Bridge Management. Relevant

here, after conducting nearly twenty interviews and reviewing numerous

documents, the Division substantiated Y.N.'s allegations against petitioner for

race discrimination and retaliation. Ultimately, petitioner was issued a written

warning.

      We incorporate by reference the facts and procedural history set forth in

the Commission's decision, summarizing the Division's investigation.        The

events that gave rise to both findings occurred in summer 2016 during meetings

between Y.N. and petitioner.


                                                                        A-4016-17T2
                                       2
      In early July 2016, Y.N. attempted to notify petitioner of an alleged

discriminatory practice against his co-worker, S.O. Y.N. claimed, as a union

representative and DOT's Equal Employment Opportunity (EEO) Advisory

Committee member, he was authorized to speak on behalf of S.O., although S.O.

was not present at the meeting. Petitioner challenged Y.N.'s authority to act on

S.O.'s behalf; Y.N. conceded he lacked such authority.       And, following a

meeting with the Division's executive director in mid-July, Y.N. further

acknowledged he would refrain from misrepresenting his position with the EEO.

      Two weeks later, petitioner and his manager, G.R., met with Y.N. and

"conduct[ed] a formal counseling session as a disciplinary measure" to address

Y.N.'s prior "insubordination and misrepresentation of his authority." At G.R.'s

direction, petitioner drafted a memorandum memorializing the meeting.

According to the memorandum, the "primary" issue that prompted the

counseling meeting was Y.N.'s misrepresentation of his roles as a union

representative and EEO Advisory Committee member.            The memorandum

vaguely referenced discussions about "several other examples of action that

could [have] be[en] perceived as insubordinate." Those examples were not

specifically identified in the memorandum.




                                                                        A-4016-17T2
                                       3
      Y.N. refused to acknowledge receipt of the memorandum. Instead, Y.N.

stated "he was going to go to the [Division]."         Petitioner claimed he was

confused by Y.N.'s response, prompting petitioner to ask Y.N. several questions

to clarify the meaning of the statement during their hour-long conversation.

Ultimately, petitioner "blurted out, 'Are you going to [the Division] because you

are black?'"

      During the course of the Division's investigation, petitioner acknowledged

he posed that question to Y.N., but "denied subjecting [Y.N.] to race

discrimination." Petitioner said

               he believed [Y.N.] was misinformed regarding the role
               of [the Division] and often says he is going to [the
               Division] even when the situation does not warrant it.
               [Petitioner] stated that many people in the unit think
               [Y.N.] uses [the Division] as intimidation. [Petitioner]
               explained his statement was intended to stress to [Y.N.]
               the only reason he should be complaining to [the
               Division] is if he believes he is being discriminated
               against based on his race or other [protected] category.

In essence, petitioner claimed he intended "to help [Y.N.] understand that [his]

reason for going to [the Division] was not valid."

      The Division substantiated Y.N.'s allegations of race discrimination,

finding "[t]he manner and context of the question was demeaning, especially

from a supervisor." The Division also determined petitioner retaliated against


                                                                          A-4016-17T2
                                          4
Y.N. by conducting a disciplinary counseling session after Y.N. reported alleged

discrimination against S.O. The Commission denied petitioner's ensuing appeal,

finding the Division conducted an adequate investigation.

      With regard to Y.N.'s claim of discrimination based on race, the

Commission recognized

            it was inappropriate for [petitioner] to question Y.N.'s
            motives in going to [the Division] based on any
            protected category of which Y.N. is a member. Once
            Y.N. expressed his intention to file a complaint with
            [the Division], [petitioner] should not have asked any
            questions concerning Y.N.'s intent or thought process.
            Rather, [petitioner] was required to refer the matter to
            [the Division] for its investigation. Attempting to
            question Y.N. as to why he was going to file a
            complaint could have improperly given the impression
            that [petitioner] was attempting to convince Y.N. not to
            file a complaint. Such an impression would be at odds
            with the State Policy, which encourages the reporting
            of alleged workplace discrimination and commits the
            State to providing a work environment free from
            prohibited discrimination or harassment. See N.J.A.C.
            4A:7-3.1. As such, [the Division] appropriately found
            [petitioner]'s question to be a State Policy violation.

      Turning to Y.N.'s allegations of retaliation, the Commissioner found:

            Y.N. engaged in protective activity when he met with
            G.R. and [petitioner] to report alleged discrimination
            against S.O., regardless of whether Y.N. had S.O.'s
            consent to do so. See N.J.A.C. 4A:7-3.2(a) ("All
            employees . . . have the right and are encouraged to
            immediately report suspected violations of the State
            Policy . . . .") . . . . It was only after Y.N. engaged in

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                                        5
            this protected activity that G.R. and [petitioner] issued
            the . . . counseling memo . . . [which was] incorporated
            into their . . . request for discipline.

      As further support for its decision, the Commission referenced the

disparity in the memorandum regarding the reasons for the counseling meeting:

            The memo stated that the "primary" situation that
            prompted the counseling was Y.N.'s misrepresentation
            on more than one occasion of his role as union
            representative or EEO Advisory Committee member.
            However, the investigation revealed that G.R. and
            [petitioner] failed to provide any other instances of
            Y.N.'s alleged misrepresentation and only identified the
            one incident involving S.O. wherein Y.N. engaged in
            protected activity.

      This appeal followed. On appeal, petitioner raises the following points

for our consideration:

            I. The Commission erred in finding [petitioner]
            violated N.J.A.C. 4A:7-7-3.1 . . . as it confused its
            interpretation of an inappropriate inquiry with a
            demeaning reference.

            II. The Commission's finding that [Y.N.]'s allegations
            that discipline was retaliation for protected activity
            were substantiated is a clear material error.

            III. The Commission was arbitrary and capricious
            when it failed to address [Y.N.]'s false discrimination
            complaint.




                                                                        A-4016-17T2
                                       6
                                        II.

      Our limited review of an administrative agency's action is well settled.

Russo v. Bd. of Trs., Police & Firemen's Retirement Sys., 206 N.J. 14, 27 (2011).

Reviewing courts "afford[] a 'strong presumption of reasonableness' to an

administrative agency's exercise of its statutorily delegated responsibilities."

Lavezzi v. State, 219 N.J. 163, 171 (2014) (quoting Newark v. Nat. Res.

Council, Dep't of Envtl. Prot., 82 N.J. 530, 539 (1980)). That presumption is

particularly strong when an agency is dealing with specialized matters within its

area of expertise. Nat. Res. Council, 82 N.J. at 539-41. We therefore defer to

"[a]n administrative agency's interpretation of statutes and regulations within its

implementing and enforcing responsibility . . . ." Wnuck v. N.J. Div. of Motor

Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001) (internal quotation marks

omitted). We do not substitute our judgment for that of the agency and, if there

is any argument supporting the agency action, it must be affirmed. Clowes v.

Terminix Int'l, Inc., 109 N.J. 575, 587 (1988).

      For those reasons, "an appellate court ordinarily should not disturb an

administrative agency's determinations or findings unless there is a clear

showing that (1) the agency did not follow the law; (2) the decision was

arbitrary, capricious, or unreasonable; or (3) the decision was not supported by


                                                                           A-4016-17T2
                                        7
substantial evidence." In re Virtua-West Jersey Hosp. Voorhees for a Certificate

of Need, 194 N.J. 413, 422 (2008). "The burden of demonstrating that the

agency's action was arbitrary, capricious or unreasonable rests upon the [party]

challenging the administrative action." In re Arenas, 385 N.J. Super. 440, 443-

44 (App. Div. 2006).

      The Commission adopted the State Policy pursuant to its authority to

"[a]dopt and enforce rules . . . to effectively implement a comprehensive

personnel management system" for all state employees. N.J.S.A. 11A:2-6(d).

Relevant here, "[i]t is a violation of [the] policy to use derogatory or demeaning

references regarding a person's race . . . [which is a] protected category . . . ."

N.J.A.C. 4A:7-3.1(b). An example of prohibited activity includes "[e]ngaging

in threatening, intimidating, or hostile acts toward another individual in the

workplace because that individual belongs to, or is associated with, any of the

protected categories . . . ." N.J.A.C. 4A:7-3.1(b)(1)(vi).

      Retaliation also is expressly prohibited under the policy. N.J.A.C. 4A:7 -

3.1(h) (prohibiting "[r]etaliation against any employee who . . . provides

information in the course of an investigation into claims of discrimination . . .

in the workplace"). Accordingly, no employee "shall be subjected to adverse

employment consequences" for bringing a discrimination complaint or


                                                                           A-4016-17T2
                                        8
providing information about alleged discrimination. Ibid. Prohibited activities

include "[i]mposing or threatening to impose disciplinary action on an employee

for reasons other than legitimate business reasons . . . ."     N.J.A.C. 4A:7-

3.1(h)(4).

      The State Policy "is a zero tolerance policy."     N.J.A.C. 4A:7-3.1(a).

Accordingly, disciplinary or corrective action can be taken "regardless of

whether the conduct satisfies the legal definition of discrimination . . . ."

N.J.A.C. 4A:7-3.1(a). "A violation of [the] policy can occur even if there was

no intent on the part of an individual to harass or demean another." N.J.A.C.

4A:7-3.1(b).

      Having considered petitioner's contentions in view of the record and these

applicable legal principles, we conclude they are without sufficient merit t o

warrant further discussion in our written opinion. R. 2:11-3(e)(1)(E). We affirm

substantially for the reasons expressed in the Commission's well-reasoned final

decision, which "is supported by sufficient credible evidence on the record as a

whole." R. 2:11-3(e)(1)(D). We add only the following brief remarks.

      Petitioner contends his use of the term "black" was taken out of context,

and not made with the intent to threaten, demean, or attempt to convince Y.N.

to refrain from filing a complaint with the Division. Although the State Policy


                                                                        A-4016-17T2
                                       9
could have been violated notwithstanding his intent, N.J.A.C. 4A:7-3.1(b), the

Commission also considered the context and timing of petitioner's remark, i.e.,

it was made after "Y.N. expressed his intention to file a complaint with [the

Division] . . . ." Indeed, the Division initially determined, "[g]iven the [DOT's]

zero tolerance of prohibited behaviors, and that [petitioner was] a supervisor,

[he was] held to a higher standard . . . ."      See also N.J.A.C. 4A:7-3.1(e)

(requiring supervisors to "make every effort to maintain a work environment

that is free from any form of prohibited discrimination").

      Affirmed.




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