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                                                     SUPERIOR COURT OF NEW JERSEY
                                                     APPELLATE DIVISION
                                                     DOCKET NO. A-0590-17T1

IN THE MATTER OF VICTOR
BERMUDEZ, CUMBERLAND
COUNTY, DEPARTMENT OF
CORRECTIONS.
___________________________

                Submitted April 3, 2019 – Decided May 2, 2019

                Before Judges Vernoia and Moynihan.

                On appeal from the New Jersey Civil Service
                Commission, Docket No. 2014-716.

                Alterman & Associates, LLC, attorneys for appellant
                Victor Bermudez (Stuart J. Alterman, of counsel and on
                the brief; Arthur J. Murray, on the brief).

                Theodore E. Baker, Cumberland County Counsel,
                attorney for respondent County of Cumberland
                (Melissa D. Strickland, Assistant County Counsel, on
                the brief).

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

PER CURIAM
      Victor Bermudez, a corrections officer employed by the Cumberland

County Department of Corrections (CCDOC), appeals from an August 22, 2017

final agency decision of the Civil Service Commission adopting an

administrative law judge's (ALJ) initial decision sustaining the CCDOC's

imposition of a ten-day suspension for violating its harassment policy. Based

on our review of the record, we are convinced the Commission's decision is

supported by substantial credible evidence and is not otherwise arbitrary,

capricious or unreasonable, and affirm.

                                      I.

      On January 3, 2013, the CCDOC served Bermudez with a preliminary

notice of discipline charging him under N.J.A.C. 4A:2-2.3(a)(12) with

"[v]iolation of . . . County Policy 4.11 Harassment in the work place" in

connection with a September 7, 2012 altercation Bermudez had with a fellow

corrections officer, Gregory Glenn. The preliminary notice recommended a ten-

day suspension.

      Bermudez appealed the preliminary notice of disciplinary action. The

charge was sustained in a departmental hearing, and a final disciplinary notice

was issued on September 17, 2013. Bermudez appealed the final notice of

disciplinary action to the Commission, arguing that the "decision at the local


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                                          2
level [was] baseless and unjustly harsh." The Commission referred the matter

to an ALJ for a hearing.

      The evidence presented during the hearing showed that on September 7,

2012, Glenn disclosed to other officers comments Bermudez made about an

officer who claimed to have cancer. Glenn reported that Bermudez, who was a

delegate for the corrections officers' union and involved in handling employee

grievances, said the officer did not really have cancer and liked to avoid work.

Glenn also advised the officer who claimed to have cancer that she should

request assistance from a union official other than Bermudez because Bermudez

did not think she had cancer.

      Bermudez became irate when he learned Glenn reported his comments to

the other officers. He approached Glenn at the Cumberland County jail and said,

"What's wrong with you, you bitch ass nigger?" and "Didn’t you take your

hormone shots?" Glenn immediately reported the incident to his superiors and

completed a written report describing what he characterized as Bermudez's

"threatening behavior":

            [A]t 0815 [hours] . . . Bermudez went off on me . . . .
            Bermudez said "Glenn have you took those hormone[]
            shots to get the bitch out of you?" "You bitch ass
            nigger. Why did you tell about what I said." Bermudez
            had made a statement that he believed [the officer
            claiming she had cancer] was faking that she had

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                                       3
            cancer. Bermudez kept screaming out in front of [two
            inmates] and [another officer]. He said "[y]ou bitch ass
            nigger this isn’t the first time you told on me[.]" When
            Bermudez was screaming all this, he was approaching
            me with his fists ball[ed] up. He kept calling me,
            Officer Glenn[,] a bitch ass nigger and get [the] fuck
            out of my way. Bermudez scream also ["]don’t say
            another thing to me ever, you bitch ass nigger["] and
            went storm off[.]

      Glenn testified that Bermudez called him a "bitch ass nigga," explained

he was upset when he wrote his report and mistakenly wrote "nigger" instead of

"nigga," and further explained he distinguished between the two terms and that

"nigga" is a "term of endearment." Glenn is an African-American man, and

Bermudez describes himself as Puerto Rican with African ancestry.

      The written report of the other officer present during the incident states

that Bermudez asked Glenn "if he had taken anything for those female hormones

of his and that [Glenn] was a bitch ass nigga."   The report further notes that

Bermudez told Glenn not to speak to him again, and instructed Glenn to "move

out of [Bermudez's] way." The officer testified that although she believed there

was slight distinction between use of the terms "nigger" and "nigga" and the

former term is "a little bit more harsh," she believed Bermudez called Glenn a

"bitch ass nigga" in a derogatory manner and that use of either word was

inappropriate in the workplace.


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                                       4
      Bermudez testified that he approached Glenn on the morning of

September 7, 2012, and said

            something to the effect of . . . if he took his hormone
            pills or hormone shot in reference and he . . . asked me
            what I was talking about. I'm talking about why did he
            have to tell [the officer who said she had cancer] what
            it was that I told him, and he told me I shouldn't have
            told him. I shouldn't have said that. And I said—and I
            proceeded to say "You didn't have to go and tell her. If
            you got a problem, you could have told me." And then,
            he started yelling incoherently, which he gets—he's the
            type of person that's very emotional and gets very vocal
            and loud, and I proceeded to call him a "bitch ass
            nigger" for doing so.

      Later in his testimony, Bermudez explained that he used the word "nigga"

when speaking with Glenn, and claimed the word "can be used as a term of

endearment to friends." Bermudez admitted he "called [Glenn] a 'bitch ass

nigga'" because "[Glenn's] voice gets real high" and he was "challenging

[Glenn's] manhood, meaning, you know, you're acting like a female, you

know . . . gossiping with women."        Bermudez further testified he "said

something to the effect that [Glenn] had a lot of estrogen in him and that [Glenn]

was acting like a female, gossiping with females when, you know, if [Glenn]

had a problem" with what Bermudez said about the officer who said she had

cancer, Glenn "should have talked man to man about it, not ran to a woman."



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                                        5
Bermudez testified he did not intend to racially insult Glenn, but he did intend

to insult Glenn by saying Glenn was acting like a woman.

      Following the incident, Glenn called Captain Radames Morales, who

testified Glenn was "highly upset" and "said that he was just verbally assaulted

by . . . Bermudez." Morales testified Glenn was "very agitated and offended"

by the incident. After his conversation with Glenn, Morales documented Glenn's

complaint, which was sent to Internal Affairs for an investigation.

      Warden Robert Balicki assigned the investigation to Captain Palau.

Balicki testified he believed that "people have the right to come to the workplace

and not be intimidated and called names and threatened and . . . made to feel

uncomfortable at work." He also testified he did not distinguish between the

words "nigger" and "nigga," stating he found "both [words] offensive." After

Palau's investigation, Balicki determined Bermudez should be disciplined. He

used correctional discipline guidelines to impose the ten-day suspension. Glenn

testified he reconciled with Bermudez following the incident, and submitted a

letter requesting dismissal of the charge against Bermudez, but Balicki denied

the request.

      The County of Cumberland Prohibited Discrimination and Harassment

Policy provides that:


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                                        6
            [D]iscrimination or harassment based on a person's
            race, creed, color, religion, national origin, ancestry,
            marital status, affectional or sexual orientation, familial
            status, sex, age, disability, veteran status, gender
            identity or expression, source of lawful income used for
            rental or mortgage payments or any other classification
            protected by federal, state, or local law will not be
            tolerated. Anyone found to be engaging in unlawful
            discrimination will be subject to disciplinary action, up
            to and including termination of employment.

The policy further defines harassment as "written, verbal or physical conduct—

including but not limited to slurs, remarks, epithets, jokes, intimidating or

hostile acts based on an employee's membership in a protected class, when such

conduct has the purpose or effect" of interfering with an employee's work

performance, creating a "hostile[] or offensive work environment[,]" or

"[o]therwise adversely affecting an individual's employment opportunities."

      Following the presentation of the evidence, the ALJ issued a written

decision and recommendation. The ALJ found that although there was a factual

dispute as to whether Bermudez used the word "nigger" or "nigga," Bermudez's

admitted use of the "N" word, regardless of its form, was not intended as a term

of endearment, "has no place in [a] public work place" and violated the County's

harassment policy. The ALJ rejected the efforts to "minimize the significance

of the incident," explaining that the "N" word "has been used for generations to

degrade," and is "so vile that [its use] cannot be countenanced."

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                                        7
      The ALJ also found Bermudez's "question to Glenn about whether he had

taken his hormone, and statement about Glenn's estrogen level clearly

amount[ed] to slurs against Glenn's sex and gender identity." Additionally, the

ALJ found Bermudez's "use of the terms 'bitch' and 'ass' constitute[d] epithets

within the meaning of" the County's harassment policy and constituted "sexually

derogatory language [that] was unacceptable in the public work place." The

ALJ noted that because Bermudez was a "high ranking union official," his

conduct "created an intimidating environment." The ALJ therefore sustained

the charge.

      The ALJ reviewed Bermudez's suspension in light of his conduct and prior

disciplinary history. The ALJ noted Bermudez's "disciplinary record is lengthy,

but remarkably minimal," and found Bermudez had not been subject to

disciplinary action since 2002, when he received a thirty-day suspension for

leaving his post. The ALJ found Bermudez's conduct was sufficiently severe to

support the ten-day suspension imposed by the CCDOC. The ALJ explained

that Bermudez's use of the "'N' word in any form was unacceptable in the work

place" and that its use "in the work place will not be tolerated."




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                                        8
      Bermudez filed exceptions to the Commission. On August 22, 2017, the

Commission issued its final agency decision adopting the ALJ's findings and

recommendation for imposition of the ten-day suspension.

                                       II.

      "Our review of administrative agency action is limited." Russo v. Bd. of

Trs., Police & Firemen's Ret. Sys., 206 N.J. 14, 27 (2011). A reviewing court

will presume the validity of the "administrative agency's exercise of its

statutorily delegated responsibilities." Lavezzi v. State, 219 N.J. 163, 171

(2014). Thus, "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 substantial evidence." In

re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413,

422 (2008). "Where . . . the determination is founded upon sufficient credible

evidence seen from the totality of the record and on that record findings have

been made and conclusions reached involving agency expertise, the agency

decision should be sustained." Gerba v. Bd. of Trs., Pub. Emps.' Ret. Sys., 83

N.J. 174, 189 (1980).




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                                       9
      This same deferential standard applies to our review of the agency's choice

of a disciplinary sanction. In re Herrmann, 192 N.J. 19, 28 (2007). We review

discipline only to determine whether the "punishment is 'so disproportionate to

the offense, in the light of all the circumstances, as to be shocking to one's sense

of fairness.'" In re Carter, 191 N.J. 474, 484 (2007) (quoting In re Polk License

Revocation, 90 N.J. 550, 578 (1982)). "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).

      Bermudez contends that his use of the term "nigga" under the

circumstances does not rise to the level of conduct constituting harassment or a

hostile work environment under the New Jersey Law Against Discrimination

(NJLAD), N.J.S.A. 10:5-1 to -42. He ignores our Supreme Court has explained

that "[r]acial epithets are regarded as especially egregious and capable of

engendering a severe impact," Taylor v. Metzger, 152 N.J. 490, 5-2 (1998), and

that a supervisor's single use of the term "jungle bunny" to refer to an African

American employee conveyed "an unambiguously demeaning racial message

that a rational factfinder could conclude was sufficiently severe to contribute

materially to the creation of a hostile work environment," id. at 502. We


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                                        10
therefore reject the premise underlying defendant's contention—that use of the

term "nigga" in the workplace directed in anger against an African-American

employee does not constitute harassment or create a hostile environment under

the NJLAD—but need not further address its merits because the CCDOC

imposed the suspension for Bermudez's violation of the County's harassment

policy, not the NJLAD. Bermudez does not dispute that his statements—both

those that were racially and sexually abhorrent and derogatory—violated the

policy, and any claims Bermudez's conduct did not violate the policy or support

the imposition of a disciplinary sanction are without sufficient merit to warrant

any further discussion in a written opinion. R. 2:11-3(e)(1)(E).

      We are also not persuaded by Bermudez's argument that the ten-day

suspension is excessive because it is "so disproportionate to the offense, in the

light of all the circumstances, as to be shocking to one's sense of fairness,"

Carter, 191 N.J. at 484 (quoting Polk, 90 N.J. at 578), and otherwise violated

principles of progressive discipline. There is no requirement that progressive

discipline be imposed in every case. Herrmann, 192 N.J. at 33. Progressive

discipline is inapplicable "when the misconduct is severe, when it is unbecoming

to the employee's position or renders the employee unsuitable for continuation

in the position, or when application of the principle would be contrary to the


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                                      11
public interest." Ibid. Here, the evidence supports the Commission's finding

that Bermudez's statements were so unacceptable, vile and contrary to the

harassment policy that a suspension was appropriate even though his last

disciplinary infraction, which resulted in a thirty-day suspension, occurred many

years before.   In addition, the ten-day suspension does not "shock[] . . . [our]

sense of fairness," In re Stallworth, 208 N.J. 182, 195 (2011) (quoting Carter,

191 N.J. at 484), and we find no basis warranting reversal of the Commission 's

decision.

      Affirmed.




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