DENISE COLE, INDIVIDUALLY AND AS A MEMBER OF THE CWA, AFL–CIO, Appellant, v. STATE OF NEW JERSEY OFFICE OF THE PUBLIC DEFENDER, Respondent.
DOCKET NO. A–4451–10T4
-- October 11, 2013
Hunt, Hamlin & Ridley, attorneys for appellant (Terry Ridley, of counsel and on the brief).John J. Hoffman, Acting Attorney General, attorney for respondent State of New Jersey (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Peter D. Wint, Assistant Attorney General, on the brief).Martin R. Pachman, General Counsel, attorney for respondent Public Employment Relations Commission (Mary E. Hennessy–Shotter, Deputy General Counsel, on the brief).
Plaintiff Denise Cole, an investigator for the Office of the Public Defender (OPD), appeals from a Public Employment Relations Commission (PERC) final decision dismissing her complaint, which alleged that the OPD suspended her on two separate occasions in retaliation for engaging in protected union activities. We conclude that PERC applied the correct legal standard and based its determinations on substantial credible evidence in the record. Therefore, we affirm.
We discern the following pertinent facts from the record before the PERC hearing examiner. In early 2000, Cole began working at the OPD as an investigator and in 2002, she became a shop steward in her union, the Communications Workers of America (CWA). In 2004, Cole filed two grievances, and encouraged others to file a third grievance regarding work assignments, promotions and communication issues. On January 19, 2005, management met with both Cole and Laurie Taylor, a staff representative for the CWA, to discuss Cole's grievances; a negotiated resolution resulted.
The following day, Cole attended a meeting with Robert Freidman, the managing attorney of the Newark office, to discuss potential attorney-client privilege issues in Cole's expected testimony in a municipal court proceeding the next day. There, Friedman explained that Cole would take direction from OPD attorney Gina Hunt, who would attend court with her. Friedman said that Cole was not receptive to his instructions; in fact, Friedman stated that Cole said she did not have to listen to Hunt, and that the attorney-client privilege rules did not apply to her. Furthermore, according to Friedman, Cole then became loud towards Hunt, and “got up and started to take steps towards her” and had to be told to stop. Cole eventually covered her ears and started loudly chanting “ ‘lawyer, lawyer, lawyer[.]’ ” Cole disputed Friedman's version, and claimed that assistant chief investigator, Libertad Matos (Matos) told her to “get the hell out.”
Following the meeting, Friedman contacted Patrick Reilly, Division Director for Mental Health and Guardianship Advocacy, to explain what had occurred. Reilly instructed Friedman and Matos to prepare separate memoranda outlining the events of the meeting. Thereafter, the OPD decided to discipline Cole for her conduct, and on February 4, 2005, issued a preliminary notice of disciplinary action for a one-day suspension. The notice stated that Cole was charged with “N.J.A.C. 4A:2–2.3(a) 2. Insubordination, and 6. Conduct unbecoming of a public employee[.]” On June 27, 2005, the departmental hearing examiner issued a written determination finding the proposed one-day suspension of Cole was an appropriate sanction. On June 30, 2005, the OPD issued a Final Notice of Minor Disciplinary Action suspending Cole for one day.
On February 6, 2006, Cole filed a grievance against Joan Van Pelt, a senior attorney, and Friedman, claiming they both coerced OPD employees to write derogatory statements about her. Next, Cole met with Dalton Bramwell, another CWA shop steward, and Reilly at a stage one meeting to discuss the grievance. On March 23, 2006, Cole appealed the grievance to a stage two meeting and claimed that management never responded to her complaint.
On March 29, 2006, in her capacity as shop steward, Cole submitted a memorandum identifying what she believed was a violent work-place incident. On June 8, 2006, Cole sent an email to Friedman, Reilly, and others concerning a temporary employee. Friedman interpreted the email as accusing him of acting unethically. Friedman testified he responded to the email stating that Trenton told him Cole “does not represent temporary employees.”
On June 12 2006, Friedman learned that Cole had received a telephone call from an employee who was not in the office. According to Friedman, he approached Cole at the copy machine and inquired about the employee's location. Cole responded belligerently and stated, “why are you treating me like this. You know I'm not perfect. I make mistakes, you can't treat me like this.” Friedman then asked Cole again where the employee was, and Cole responded, “she is where she is supposed to be.” Cole eventually gave Freidman the location of the employee, “but it took multiple questions.”
On June 21, 2006, the OPD issued a preliminary notice of disciplinary action for a five-day suspension against Cole and charged her with “N.J.A.C. 4A:2–2.3(a) 2. Insubordination, and 6. Conduct unbecoming a public employee [.]” Specifically, the notice stated that Cole's actions at the copy machine were “extremely disrespectful” to Friedman and were within an “earshot of other employees.” Additionally, the notice stated that Cole's June 8, 2006 email exhibited insubordination and conduct unbecoming of an employee because it made “unfounded allegations about the hiring and terminations of temporaries in [the] office.”
Cole appealed the proposed discipline, and filed a grievance on August 1, 2006, claiming that Reilly, Matos, and Friedman were retaliating against her by attempting to place her on medical leave because she had complaints pending against management. On September 22, 2007, Cole received a final notice of discipline sustaining the five-day suspension.
On December 13, 2005 and November 14, 2006, the CWA filed unfair labor practice charges against the OPD relating to Cole's one-day and five-day suspensions. Specifically, the charges alleged that Cole was improperly disciplined for her activities as a union shop steward. On May 8, 2007, PERC issued an order consolidating the two proceedings for hearing. Thereafter, a ten-day hearing was conducted by the hearing examiner between November 19, 2008 and July 7, 2009, and post-hearing briefs were submitted in January 2010.
On April 29, 2010, the hearing examiner issued a forty-three page report recommending dismissal of the complaint. On March 31, 2011, PERC issued its written decision adopting the findings of the hearing examiner and dismissed the complaint. PERC found that the case “turned on witness credibility” and adopted the hearing examiner's credibility findings. Cole filed this appeal on May 13, 2011.
An appellate court's scope of review “of a final agency decision is limited.” In re Carter, 191 N.J. 474, 482 (2007). The court “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., 194 N.J. 413, 422 (2008). Additionally, the court should not “ ‘disturb [a] credibility determination, made after due consideration of the witnesses' testimony and demeanor during the hearing.’ ” In re Snellbaker, 414 N.J.Super. 26, 36 (App.Div.2010) (quoting H.K. v. State of N.J. Dept. of Human Servs., Div. of Med. Assistance and Health Servs., 184 N.J. 367, 384 (2005)).
“The burden of demonstrating that the agency's action was arbitrary, capricious or unreasonable rests upon the person challenging the administrative action.” In re Arenas, 385 N.J.Super. 440, 443–44 (App.Div.), certif. denied, 188 N.J. 219 (2006). See also Barone v. Dep't of Human Servs. Div. of Med. Assistance & Health Servs., 210 N.J.Super. 276, 285 (App.Div.1986), aff'd, 107 N.J. 355 (1987). The role of the court is to ensure the decision is based on substantial evidence and supported by the record. In re Carter, supra, 191 N.J. at 483 (citation omitted). While an agency's expertise in the area is given great respect, the appellate court is not bound by an agency's decision. Ibid. (citation omitted).
Pursuant to the New Jersey Employer–Employee Relations Act (Act), N.J.S.A. 34:12A–1 to –21, it is “unlawful [to] discharge or otherwise [take an] adverse public employer action against a worker because of his or her union activity.” N.J.S.A. 34:13A–5.4 a(1) and (3). “Public employers still retain the right, however, to discharge a worker for a legitimate business reason, unrelated to the employee's union activities.” In re Bridgewater Twp., 95 N.J. 235, 237 (1984).
To establish a prima facie case for an unfair labor practice claim, the employee must show “the protected activity was ‘a substantial, i.e., a motivating factor’ in the employer's disputed action. Once this is accomplished, the burden shifts to the employer to ‘go forward and establish by a preponderance of the evidence’ that the action occurred for legitimate business reasons and not in retaliation for the protected activity.” Id. at 244 (quoting East Orange Pub. Library v. Taliaferro, 180 N.J.Super. 155, 163 (App.Div.1981)).
On appeal Cole argues that PERC's decision should be vacated, claiming that it is against the weight of the evidence, contrary to public policy, and conflicts with the Act. We disagree. The law and substantial credible evidence in the record support PERC's determination that Cole failed to show that either one of her suspensions was retaliatory action based upon Cole's protected union activities, or were otherwise improper.
In its twenty-five page decision, PERC accepted the hearing examiner's credibility determinations, noting that “assessing credibility is an essential role of the Hearing Examiner.” The record contains no evidence to suggest that this court should divert from the hearing examiner's credibility determinations either. See In re Snellbaker, supra, 414 N.J.Super. at 36.
A. One–Day Suspension.
The hearing examiner primarily relied on her credibility determinations to make her recommendation on this issue. She credited the testimony of Friedman and Matos, but found the testimony of Cole and Hunt not credible. Friedman's and Matos' testimony established that Cole acted insubordinately during the January 20, 2005 meeting pertaining to her testimony in municipal court. Specifically, the hearing examiner credited Friedman's testimony that Cole raised her voice, stood up in a threatening manner, and failed to follow instructions during the meeting.
The hearing examiner also referenced the Act and considered the protected union activity that Cole engaged in prior to the one-day suspension. See N.J.S.A. 34:13A–5.4 a(1) and (3). Specifically, the hearing examiner rejected Cole's contention that the one-day suspension was actually related to the January 19, 2005 grievance meeting, rather than her conduct the following day.
Indeed, a fair reading of the record shows that Cole's one-day suspension was fair punishment for her inappropriate actions during the January 20, 2005 meeting. There is no credible evidence to support Cole's allegation that the one-day suspension related to her union activity.
Cole also alleges that her Weingarten 1 rights were violated because she did not have union representation at the January 20, 2005 meeting. We disagree.
In Weingarten, the Supreme Court held that a union member is entitled to representation at an interview by management, where the employee reasonably believes that it will lead to disciplinary action. Id. at 256–57, 95 S.Ct. at 963–64, 43 L. Ed. at 177–78. Here, Cole had no rational reason to believe that the January 20, 2005 meeting would lead to discipline. The purpose of the meeting was specifically to give her instructions regarding the application of the attorney-client privilege for her upcoming testimony in municipal court. She was disciplined after the meeting solely due to her inappropriate conduct during the meeting.
B. Five–Day Suspension.
Both the hearing examiner and PERC properly analyzed Cole's complaint pertaining to the five-day suspension as a mixed motive case under Bridgewater. Because the preliminary notice of disciplinary action specifically referenced Cole's June 8, 2006 email that questioned policies pertaining to temporary employees, PERC appropriately accepted the hearing examiner's determination that the discipline was at least in part hostile toward this protected activity.
However, there is also ample evidence in the record to support PERC's determination that the OPD proved by a preponderance of the evidence that it would have disciplined Cole absent her protected activity. Both the hearing examiner and PERC concluded that the discipline was imposed for Cole's actions at the copy machine, and not in retaliation for her June 8, 2006 e-mail. As PERC noted, “[t]he Hearing Examiner engaged in an exhaustive analysis of the facts and specifically found that Cole's behavior at the photocopy machine was disrespectful, obstinate and unprofessional rising to the level of insubordination and conduct unbecoming of an employee.” The hearing examiner specifically credited Friedman's testimony that Cole acted inappropriately, and PERC correctly deferred to this determination.
We are satisfied that the record contains sufficient credible evidence to support PERC's decision to dismiss Cole's complaint as to both suspensions. Moreover, Cole fails to point to any credible evidence in the record that shows PERC's decision to dismiss the complaint was either arbitrary, capricious or unreasonable.
1. FN1. N.L.R.B. v. Weingarten, Inc., 420 U.S. 251, 95 S.Ct. 959, 43 L. Ed.2d 171 (1975).