                        NOT FOR PUBLICATION WITHOUT THE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-5554-14T3

RUGIATU SESAY,

        Complainant-Appellant,

v.

BAYSHORE COMMUNITY HOSPITAL,

     Respondent-Respondent.
_______________________________

              Submitted April 4, 2017 – Decided April 19, 2017

              Before Judges Ostrer and Vernoia.

              On appeal from the New Jersey Division on
              Civil Rights, Department of Law and Public
              Safety, Docket No. EN18WB-63987.

              Rugiatu Sesay, appellant pro se.

              Fox Rothschild LLP, attorneys for respondent
              Bayshore Community Hospital (William M.
              Honan, of counsel; Sarah Beth Johnson, on
              the brief).

              Christopher S. Porrino, Attorney General,
              attorney for respondent New Jersey Division
              on   Civil  Rights   (Andrea   M.  Silkowitz,
              Assistant Attorney General, of counsel;
              Beverley   A.   Lapsley,    Deputy   Attorney
              General, on the brief).

PER CURIAM
       Rugiatu Sesay appeals from a June 29, 2015 final agency

determination         of   the    New      Jersey     Division    on     Civil       Rights

(Division) finding no probable cause supporting her claim that

Bayshore      Community        Hospital     (Bayshore)      engaged       in     national

origin       and     disability       discrimination        and        retaliation       in

violation of the New Jersey Law Against Discrimination (LAD),

N.J.S.A. 10:5-1 to -49. We affirm.

       Sesay became employed at Bayshore in 1995 as a nurse's

aide. In 2007, Sesay was promoted to the position of registered

nurse, and was employed in that capacity until May 2013, when

Bayshore terminated her employment.

       On June 18, 2013, Sesay filed a verified complaint with the

Division      alleging         Bayshore      discriminated        against        her     by

terminating her employment based on her national origin,1 her

alleged      disability,        and   in    retaliation     for     making       a    prior

complaint          about   national        origin      discrimination.           Bayshore

disputed      the     allegations,      claiming       Sesay     was    terminated       in

accordance with its established progressive discipline policy

for multiple performance issues.

       The    Division         investigated       Sesay's      allegations.             The

Division      served       a    document        and   information        request       upon


1   Sesay alleged she was born in the Republic of Sierra Leone.


                                            2                                    A-5554-14T3
Bayshore.     Bayshore's      responses     included     a    detailed    written

statement of position and answers to the Division's information

requests.    In   response    to    the    Division's        document     demands,

Bayshore     provided     handbooks        and      policy      manuals,        job

descriptions,     policies,    grievance        procedure    records,     and   the

complete personnel files of Sesay and two other employees, M.Z.

and L.R.2    Sesay had alleged M.Z. and L.R. did not share her

national origin, alleged disability, or history of complaining

about discriminatory treatment and were not terminated although

they engaged in the same conduct that Bayshore relied upon to

terminate    Sesay's    employment.       The    Division     also    interviewed

Bayshore's vice president of nursing, Sesay's nurse manager, a

nurse manager who reviewed a complaint made by Sesay concerning

discipline   that   had   been     imposed,      and   two    black     registered

nurses about their treatment as Bayshore's employees. One of the

nurses was from Cameroon and the other was from the West Indies.

    In a detailed report, the Division found

            the investigation did not support [Sesay's]
            allegation   that   [Bayshore]  discriminated
            against her based on her national origin or
            race.[3] The investigation found that [Sesay]

2 We employ initials to protect the privacy of the personnel
information of these non-parties to this dispute.

3  Although Sesay's       verified    complaint did not allege race
discrimination, the       Division    considered and investigated her
                                                           (continued)

                                      3                                   A-5554-14T3
              had four performance infractions stemming
              from   patient   complaints,   and   that   in
              accordance      with      its      progressive
              disciplin[ary] policy, [Bayshore] discharged
              her.    The    investigation    showed    that
              [Bayshore] imposed progressive discipline
              for employees of other races and national
              origins for similar conduct. Regarding her
              allegation   of   disability   discrimination,
              [Sesay] acknowledged that [Bayshore] granted
              her ten weeks of medical leave, and plainly
              stated that [Bayshore] did not discharge her
              because she took medical leave or because of
              any    medical    condition.    Lastly,    the
              investigation showed no causal link between
              [Sesay's] 2011 internal complaint of race
              discrimination   and   her   2013   discharge.
              Rather, the investigation showed that in
              2011 [Bayshore] reviewed [Sesay's] race
              discrimination complaint, determined      that
              [Sesay] had been differentially treated in a
              discipline matter because of her race, and
              rescinded the discipline. Based on the
              investigation, and in the absence of any
              persuasive evidence of a discriminatory or
              retaliatory animus, this case is closed
              [based on a finding of no probable cause].

On June 25, 2015, the Division "determined pursuant to N.J.S.A.

10:5-14 and N.J.A.C. 13:4-10.2 that there is no probable cause

to   credit    the   allegations   of       the   complaint   and   the   file    is

therefore closed." This appeal followed.

      On appeal, Sesay argues:




(continued)
national origin discrimination claim also as a claim of racial
discrimination.


                                        4                                 A-5554-14T3
            THE DIVISION [ON] CIVIL RIGHTS FAILED TO
            PROPERLY INVESTIGATE THE CASE AND IT SHOULD
            BE DECIDED BY A JURY.

       Our review of the Division's decision is a limited one.

Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). "We

accord     'a        "strong    presumption      of   reasonableness"       to     an

administrative agency's exercise of its statutorily delegated

responsibilities.'"                  Wojtkowiak v. New Jersey Motor Vehicle

Comm'n, 439 N.J. Super. 1, 13 (App. Div. 2015) (quoting Lavezzi

v. State, 219 N.J. 163, 171 (2014)). We "must survey the record

to    determine       whether    there   is   sufficient    credible      competent

evidence        in     the     record    to     support    the   agency      head's

conclusions." Ibid. (quoting Clowes, supra, 109 N.J. at 587).

       We are also required to give due regard to the agency's

expertise. Ibid. "We may reverse the Director's decision only if

'the Director's finding is clearly a mistaken one and so plainly

unwarranted that the interests of justice demand intervention

and   correction.'"          Ibid.   (quoting    Clowes,   supra,   109    N.J.    at

588).      We "will not upset an agency's ultimate determination

unless the agency's decision is shown to have been 'arbitrary,

capricious, or unreasonable, or [] not supported by substantial

credible evidence in the record as a whole.'" Ibid. (quoting

Barrick v. State, 218 N.J. 247, 259 (2014)).



                                          5                                A-5554-14T3
       Here,   Sesay   makes    two    arguments.           She    first          asserts      the

Division failed to properly investigate her claim. The Division

is authorized to conduct investigations following the filing of

a   verified     complaint     alleging        discrimination            under      the       LAD,

N.J.S.A.   10:5-14;       N.J.S.A.    10:5-8(d),            (h).       The    Division         may

"conduct such discovery procedures . . . as shall be deemed

necessary . . . in any investigation." N.J.S.A. 10:5-8(i). "This

'discretionary authority to investigate' is reviewable for an

abuse of discretion." Wojtkowiak, supra, 439 N.J. Super. at 21

(quoting Gallo v. Salesian Soc'y. Inc., 290 N.J. Super. 616, 650

(App. Div. 1996)).

       Sesay's contention that the Division failed to investigate

her    allegations     is    undermined         by    the    record.          The    Division

conducted a comprehensive investigation over a two-year period

that   included     the     review    of       over   900     pages          of    documents,

interviews with Bayshore's employees, numerous interactions with

Sesay, and a careful assessment of Sesay's claims in light of

the evidence. We discern no abuse of the Division's discretion

in the manner in which the investigation was conducted and Sesay

fails to demonstrate otherwise.

       Sesay's    second    argument       is    that       her    discrimination              and

retaliation      claims     should    be       decided      by     a    jury.       A      person

alleging   discrimination        or   retaliation            under       the       LAD     has    a

                                           6                                             A-5554-14T3
choice      of     remedies:          they       "may    pursue        their      claims

administratively,         by    filing       a   verified     complaint        with     the

[Division], or judicially, by directly instituting suit in the

Superior Court." Hernandez v. Region Nine Housing Corp., 146

N.J.     645,    652     (1996)      (citing     N.J.S.A.     10:5-13).        Filing     a

complaint in the Superior Court "would normally culminate in a

full-scale plenary trial" before a jury. Sprague v. Glassboro

State Coll., 161 N.J. Super. 218, 225 (App. Div. 1978); see

N.J.S.A. 10:5-13 (providing for jury trials in Superior Court

suits alleging violations of the LAD). Sesay did not opt to file

her complaint in the Superior Court here.

       Sesay     selected      the   Division     as    the   forum    in   which       her

complaint would be decided, thereby taking advantage of the more

expeditious        administrative         process.       Hermann       v.      Fairleigh

Dickinson       Univ.,    183     N.J.   Super.     500,      504-05    (App.     Div.),

certif. denied, 91 N.J. 573 (1982). "[H]aving chosen to pursue

her grievance administratively, [however], that chosen remedy

[was] exclusive while it [was] pending and when it [had] been

concluded."      Id.     at   504;    N.J.S.A.     10:5-27.     The    administrative

remedy chosen by Sesay does not permit or provide for a jury

trial. See Martindale v. Sandvik, Inc., 173 N.J. 76, 93 (2002)

(explaining "a jury trial is not applicable" in administrative



                                             7                                  A-5554-14T3
proceedings under the LAD). Thus, Sesay is not entitled to the

jury trial she requests for the first time on appeal.

    Affirmed.




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