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Superior Court of New Jersey, Appellate Division.


DOCKET NO. A–3972–11T2

    Decided: March 12, 2014

Before Judges Fuentes and Haas.Richard S. Mazawey, attorney for appellant Raymond Smith. Andrea I. Bazer, Monmouth County Counsel, attorney for respondent Monmouth County Board of Recreation Commissioners (Steven W. Kleinman, Special County Counsel, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent Civil Service Commission (Todd A. Wigder, Deputy Attorney General, on the statement in lieu of brief).

Appellant Raymond Smith appeals from the final administrative decision of the Civil Service Commission (Commission) that upheld action taken by Smith's employer, Monmouth County (the County), to terminate Smith's employment as a Senior Carpenter based on charges that he engaged in conduct unbecoming a public employee and violated County policies and procedures concerning discrimination and workplace violence.   We affirm.

Smith began working for the County in 2006 and, in 2008, he was disciplined with a five-day suspension for calling his co-worker, Ryan Abbott, a “nigger slave.”   At that time, the County Director of Personnel also sent Smith a letter stating:

Based on the findings of the investigation, it was confirmed on more than one occasion you have used the racially derogatory term, the “N–Word”, in the workplace․  [Y]our language is found to be troublesome and offensive․  The County of Monmouth has zero tolerance for the use of the[ ]”N-word” under any circumstances, regardless of the race of the employee using it․  [T]he County of Monmouth encourages a work environment which respects all co-workers[.]

I trust that there will never be a repeat of this behavior.

On August 24, 2009, Smith was “written up” and issued a “Notice of Counseling” after he admitted to having a “heated and loud argument” with a co-worker, in which he used foul language.   Some pushing and shoving also occurred between the two men.   After being reprimanded, Smith promised to “accept the counseling with the opportunity for improvement” and “learn to identify the situation and defuse it when necessary.”

On February 12, 2010, Smith, Abbott and two other County employees were working at a job site when, apparently frustrated by his work, Smith yelled out, “This is like we're working like niggers pouring the cement.”   After Abbott objected to this racial slur, Smith told Abbott, “I forgot who I was working with.   I say it all the time to Joey he's a guinea wop and he doesn't get offended.”   Abbott reported Smith's comments to a supervisor, who met with Smith.   After the meeting, Smith returned to confront Abbott, calling him a “fucking whining pussy” and a “fucking asshole.”   He also told Abbott to meet him after work and said, “When I get done with you you're going to be taking a lot of sick time.”   Based upon Smith's repeated use of an abhorrent racial slur and another incident of threatened workplace violence, the County removed Smith from employment.

Smith requested a hearing and the matter was referred to the Office of Administrative Law. Smith admitted using the racial slur at the workplace, but attempted to excuse his conduct by stating that the working environment in the construction industry was full of “constant foul language all the time.”   He testified that the specific slur he used was “[n]ot necessarily” a “horribly offensive word[,]” and that he believed “that if it was someone of the African descent ․ it would be offensive, but I don't think a white person would be offended” by the slur.1  Smith further admitted that it was “always a possibility” that if a “similar circumstance occurred, [the racial slur] might just come out again.”

The Administrative Law Judge (ALJ) sustained the charges, but recommended that the penalty be reduced to a six-month suspension.   On review, the Commission adopted the ALJ's findings of fact sustaining the charges, but rejected his recommendation to modify Smith's removal to a six-month suspension.   Instead, the Commission upheld the County's action to remove Smith from employment.

In a thorough written decision, the Commission explained that Smith violated the County's anti-discrimination policy, as well as civil service regulations, with his use of racial slurs, regardless of his claim that he did not direct them at anyone.   Smith previously received written notice that the County had a “zero tolerance” policy for the use of derogatory language under any circumstances.   In addition, Smith threatened Abbott with physical harm after the incident was reported to Smith's supervisor.   Thus, the Commission upheld the County's charges against Smith.

With regard to the penalty, the Commission noted that Smith had only been employed for four years and had previously received a five-day suspension for using the exact same racial slur and, later, a written reprimand for his involvement in a physical altercation with a co-worker.   Yet, he repeated that misconduct here.   In addition, Smith specifically conceded that he could not guarantee that he would not again use the slur at work.   In upholding the penalty of removal, the Commission found:

[Smith] clearly has not learned his lesson nor does he appear to be remorseful for what he said.   Moreover, [Smith's] verbal threats to Abbott cannot be tolerated.   He takes a cavalier attitude toward the situation, arguing that he did not actually intend to harm Abbott when he threatened him.   However, this only further shows that [Smith] has no remorse over what he did.   Consequently, [Smith's] record and the seriousness of his conduct reveal no mitigating circumstance.   Accordingly, the removal of [Smith] was proper.

This appeal followed.

On appeal, Smith argues that the record does not support the Commission's decision to remove him from employment.   Established precedents guide our task on appeal.   Appellate review of an administrative agency decision is limited.   In re Herrmann, 192 N.J. 19, 27 (2007).   A “strong presumption of reasonableness attaches” to the Commission's decision.  In re Carroll, 339 N.J.Super. 429, 437 (App.Div.), certif. denied, 170 N.J. 85 (2001).   Appellants have the burden to demonstrate grounds for reversal.  McGowan v. N.J. State Parole Bd., 347 N.J.Super. 544, 563 (App.Div.2002);  see also Bowden v. Bayside State Prison, 268 N.J.Super. 301, 304 (App.Div.1993) (holding that “[t]he burden of showing the agency's action was arbitrary, unreasonable or capricious rests upon the appellant”), certif. denied, 135 N.J. 469 (1994).

Appellate courts generally defer to final agency actions, only “reversing those actions if they are ‘arbitrary, capricious or unreasonable or [if the action] is not supported by substantial credible evidence in the record as a whole.’ ”   N.J. Soc'y for the Prev. of Cruelty to Animals v. N.J. Dep't of Agric., 196 N.J. 366, 384–85 (2008) (alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579–80 (1980)).   Under the arbitrary, capricious, and unreasonable standard, our scope of review is guided by three major inquiries:  (l) whether the agency's decision conforms with relevant law;  (2) whether the decision is supported by substantial credible evidence in the record;  and (3) whether in applying the law to the facts, the administrative agency clearly erred in reaching its conclusion.  In re Stallworth, 208 N.J. 182, 194 (2011).

When an agency decision satisfies such criteria, we accord substantial deference to the agency's fact-finding and legal conclusions, acknowledging “the agency's ‘expertise and superior knowledge of a particular field.’ ”   Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 10 (2009) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).   We will not substitute our judgment for the agency's even though we might have reached a different conclusion.  Stallworth, supra, 208 N.J. at 194;  see also In re Taylor, 158 N.J. 644, 656–57 (1999) (discussing the narrow appellate standard of review for administrative matters).

Our deference to agency decisions “applies to the review of disciplinary sanctions as well.”  Herrmann, supra, 192 N.J. at 28.  “In light of the deference owed to such determinations, when reviewing administrative sanctions, the test ․ is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.”  Id. at 28–29 (internal quotation marks omitted).  “The threshold of ‘shocking’ the court's sense of fairness is a difficult one, not met whenever the court would have reached a different result.”  Id. at 29.

Applying these principles here, we discern no basis for disturbing the Commission's decision to remove Smith from employment.   Smith used racial slurs in the workplace and threatened physical violence against a co-worker.   Similar incidents had previously occurred during Smith's short tenure with the County and, significantly, Smith was unable to guarantee that he would not repeat this misconduct in the future.   The Commission's decision is therefore supported by substantial and credible evidence in the record.   We affirm substantially for the reasons expressed by the Commission in its well-reasoned written opinion.



FN1. The co-workers who were with Smith when he used the racial slur were white..  FN1. The co-workers who were with Smith when he used the racial slur were white.


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