NOT FOR PUBLICATION WITHOUT THE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-2623-14T4
IN THE MATTER OF RUBY SAUNDERS.
_______________________________
Argued December 12, 2016 – Decided June 9, 2017
Before Judges Nugent and Haas.
On appeal from the Civil Service Commission,
Department of Labor and Workforce Development,
Docket No. 2014-1004.
Luretha M. Stribling argued the cause for
appellant.
Christopher Weber, Deputy Attorney General,
argued the cause for respondent New Jersey
State Prison (Christopher S. Porrino, Attorney
General, attorney; Lisa A. Puglisi, Assistant
Attorney General, of counsel; Arielle E. Katz,
Deputy Attorney General, on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent Civil Service
Commission (Valentina M. DiPippo, on the
statement in lieu of brief).
PER CURIAM
Appellant Ruby Saunders appeals from a July 16, 2014 Civil
Service Commission (CSC) final administrative decision removing
her from her position as a corrections officer recruit at New
Jersey State Prison. We affirm.
On August 28, 2013, the New Jersey Department of Corrections
(DOC), New Jersey State Prison (NJSP), served appellant with a
Preliminary Notice of Disciplinary Action (PNDA) charging her with
incompetency, inefficiency or failure to perform duties, N.J.A.C.
4A:2-2.3(a)(1); insubordination, N.J.A.C. 4A:2-2.3(a)(2); conduct
unbecoming an employee, N.J.A.C. 4A:2-2.3(a)(6); neglect of duty,
N.J.A.C. 4A:2-2.3(a)(7); other sufficient cause, N.J.A.C. 4A:2-
2.3(a)(12); neglect of duty, loafing, idleness or willful failure
to devote attention to tasks which could result in danger to
persons or property, Human Resource Bulletin 84-17 as amended B-
2; incompetence or inefficiency, B-9; insubordination:
intentional disobedience or refusal to accept order, assaulting
or resisting authority, and disrespect or use of insulting or
abusive language to a supervisor, C-9; conduct unbecoming an
employee, C-11; violation of administrative procedures and/or
regulations involving safety and security, D-7; and violation of
a rule, regulation, policy, procedure, order or administrative
decision, E-1.
Within two weeks of being served with the PNDA, appellant
filed a complaint with the DOC's Equal Employment Division (EED),
alleging she had been discriminated against based on disability,
color and race. Following its investigation of the complaint, the
EED issued a letter to appellant informing her it found no evidence
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to establish discrimination as a basis for her removal from
employment.
Meanwhile, following a departmental hearing, the DOC and NJSP
served appellant with a Final Notice of Disciplinary Action (FNDA)
dismissing the conduct unbecoming an employee charge under
N.J.A.C. 4A:2-23(a)(b), upholding the remaining charges, and
removing her from employment.
Appellant appealed to the CSC, which transferred the matter
to the Office of Administrative Law (OAL) for a hearing. An
Administrative Law Judge (ALJ) conducted a hearing and issued an
initial decision upholding the charges and appellant's removal.
On July 16, 2014, the CSC issued a final decision adopting the
ALJ's findings. This appeal followed.
During the OAL hearing, several witnesses testified on behalf
of the DOC and NJSP. Senior Investigator John Doyle testified
that on August 17, 2013, he was the Operations Lieutenant at NJSP.
NJSP personnel working the 10:00 p.m. to 6:00 a.m. shift found a
nine millimeter bullet in Unit C. Finding a bullet on a unit's
floor created a heightened, very serious situation: it gave rise
to the possibility that a weapon had been brought into the prison.
For that reason, the Special Operations Group came to the unit.
According to Investigator Doyle, once the Special Operations
Group enters a unit, they go cell to cell, strip-search the
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inmates, and escort them to another unit. After the prisoners are
removed, a supervising officer assigns available officers to
search the cells. That day, Investigator Doyle briefed all the
officers about the magnitude of the situation, explaining that a
weapon or firearm could be found. He told the officers that due
to the seriousness of the situation, they were required to conduct
a very diligent and thorough search leaving no stone unturned.
Additionally, they were to take their time and be very sure that
there was no contraband left in any cell.
A short time after the briefing, Sergeant Zsuzsanna
Rogoshewski approached Investigator Doyle. She informed him
appellant had just completed a cell search. The sergeant did not
believe appellant had thoroughly searched the cell because her
search lasted only six minutes from the time the search orders
were issued. Investigator Doyle knew the cells being searched
were the largest in the institution. Moreover, the particular
cells searched by appellant housed two inmates who possessed an
extensive amount of property. When Investigator Doyle asked where
appellant was, the Sergeant replied that after she told appellant
to re-search the cell, appellant said she had to make a phone call
and walked off.
Investigator Doyle proceeded to the cell. Over the years,
he had seen thousands of cells before and after searches. He
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immediately noticed the clothing and other items in the cell were
folded and meticulously stored. The clothing did not appear to
him as though it had been recently searched, refolded and replaced.
Based on his experience, Investigator Doyle knew the cell had not
been thoroughly searched. Investigator Doyle explained that an
officer's failure to thoroughly search a cell jeopardizes not only
the safety and security of the inmates, but also the staff.
Investigator Doyle arranged to have another officer search the
cell. The officer took approximately an hour and a half to
complete the search.
Sergeant Rogoshewski was the area sergeant on August 17,
2013. Her duties included supervising cell searches. She
explained that a thorough search consisted of "searching the cell
from top to bottom," including any bins, boxes, and anything behind
any fixtures. Such a search also included the seams, pockets, and
collars of any clothing. That day, the searches began at 11:20
a.m. and were completed at 1:25 p.m.
Six minutes after Sergeant Rogoshewski assigned appellant to
search a cell, she returned and said she had completed the task.
Questioned by Sergeant Rogoshewski, appellant said she believed
she had done a thorough search. At that point, Sergeant
Rogoshewski reported the issue to Investigator Doyle, who agreed
that the cell had not been thoroughly searched. Sergeant
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Rogoshewski summoned appellant, returned to the cell, and
demonstrated how appellant was to conduct a "grid search" of the
cell. Sergeant Rogoshewski specifically demonstrated how an item
of clothing was to be searched and appellant said she understood.
After demonstrating how the cell was to be searched, Sergeant
Rogoshewski left. A few seconds later, appellant stepped out of
the cell and told the sergeant, "I'm not searching, I'm going to
make a phone call." Sergeant Rogoshewski responded, "[t]hat's
fine" and dismissed appellant from the search detail. Sergeant
Rogoshewski then contacted Sergeant Robin Washington to have her
direct appellant to prepare a report.
Sergeant Rogoshewski denied reported accusations that she had
a personality conflict with appellant because appellant had a
pronounced stutter. The sergeant denied knowing appellant
stuttered.
Sergeant Washington did not participate in either the
supervision of the search or the search of any cells. Although
called first as a witness for NJSP, the sergeant also testified
in response to direct examination by appellant's attorney.
Contrary to Sergeant Rogoshewski's testimony, Sergeant Washington
testified Rogoshewski did not ask her to direct appellant to write
a report about the incident. Sergeant Washington also testified
she once heard Sergeant Rogoshewski remark during the movement of
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prisoners that appellant was "slow." Sergeant Washington thought
the remark was inappropriate.
Sergeant Timothy Morris, a team leader of the Special
Operations Group, overheard Sergeant Rogoshewski tell appellant
to re-search the cell. He also heard appellant's response.
Sergeant Morris went to the cell, which did not appear to have
been searched at all.
Appellant presented the testimony of Sergeant Carmen A.
Sexton and testified on her own behalf. Sergeant Sexton trained
appellant at the Police Academy and also had occasion to supervise
appellant at NJSP. She testified that in April or May 2013, she
and other supervisors, including Sergeant Rogoshewski, were
talking. Sergeant Rogoshewski remarked about appellant: "She's
slow, she doesn't belong here. She doesn't belong here." Sergeant
Sexton disagreed and told Rogoshewski appellant was not slow. She
explained appellant merely had a speech impediment and could follow
directions and perform tasks correctly.
When appellant testified, she admitted she had been trained
to search cells using the grid system. She knew she was to search
all "fixtures, lights, walls, floors, [and] plumbing." She also
acknowledged she was to search all bins, beds, linens, clothes,
books, shelves, cracks in walls, toilets, and sinks. Appellant
testified she conducted an efficient, fifteen-minute cell search
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during which she examined the beds, clothing lines, clothing,
seven containers, and fixtures. She explained that she searched
the cell without unfolding and refolding the clothing, and placed
each item back where she found it. She denied Sergeant Rogoshewski
demonstrated how to conduct a proper search. Rather, the Sergeant
called her back into the cell and aggressively instructed her to
"[g]o through all this shit again."
Appellant admitted that after Sergeant Rogoshewski left the
cell, she searched it for just one minute to see if she missed
anything. She ended the search because she felt threatened by
Sergeant Rogoshewski, who had a history of humiliating,
embarrassing and degrading her. Appellant believed Sergeant
Rogoshewski only ordered a re-search to attack and antagonize her.
Appellant wanted to make a phone call to "de-escalate" the
situation.
Sergeant Rogoshewski testified on rebuttal and denied the
remarks appellant and Sergeant Sexton had attributed to her.
After considering the evidence presented by the parties, the
ALJ found not only that appellant did not conduct a complete and
adequate search of the cell, but also that appellant had refused
to follow a direct order to correct her deficient search with a
complete and proper search. The ALJ found Sergeant Rogoshewski
and Sergeant Morris credible. The ALJ concluded appellant's
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behavior violated the Civil Service Rules and Departmental
Regulations relied on by NJSP in its FNDA.
Noting appellant had no disciplinary record, the ALJ
explained the concept of progressive discipline "may be set aside
when the offense under consideration is sufficiently egregious."
The ALJ found appellant's offense was particularly serious, her
"lackluster effort" contributed to a potential threat of the most
serious nature, and she "disregarded the fundamental obligation
of a correction officer . . . to comply with orders from a superior
officer." The ALJ stated, "[s]uch misconduct, left unpunished,
weakens the coherence of the correction officer corps [and]
threatens . . . the good order and protections of the facility."
The ALJ upheld appellant's removal from employment.
The CSC issued a final administrative determination in which
it "accepted and adopted the Findings of Fact and Conclusion as
contained in the . . . [ALJ's] initial decision." Appellant filed
this appeal.
We affirm the CSC's decision, substantially for the reasons
set forth in its final agency decision. We add only the following
comments.
Our review of a final agency decision is limited, and we "do
not ordinarily overturn such a decision 'in the absence of a
showing that it was arbitrary, capricious or unreasonable, or that
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it lacked fair support in the evidence.'" In re Carter, 191 N.J.
474, 482 (2007) (citations omitted). Further, we may not
substitute our judgment for that of the agency's when "substantial
credible evidence supports [the] agency's conclusion[.]"
Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992).
Instead, we "defer to an agency's expertise and superior knowledge
of a particular field." Ibid.
We review an agency's disciplinary sanction under a
deferential standard and only modify a sanction "when necessary
to bring the agency's action into conformity with its delegated
authority." In re Herrmann, 192 N.J. 19, 28 (2007) (quoting In
re Polk, 90 N.J. 550, 578 (1982)). We will affirm a sanction that
is not illegal or unreasonable. Ibid. (citation omitted).
Appellant contends the ALJ's decision to remove her from
employment was arbitrary, capricious, unreasonable, and not
supported by evidence in the record. She maintains she
appropriately searched the cell and was not insubordinate. We
disagree.
The ALJ determined that despite the high-risk situation,
appellant failed to conduct an adequate cell search in accordance
with her training. She subsequently disobeyed Sergeant
Rogoshewski's command to re-search the cell properly. Appellant's
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one-minute, visual scan for "anything missed" was not a search of
the type she had been trained to conduct.
Moreover, appellant's contention Sergeant Rogoshewski ordered
an additional search to humiliate, embarrass and degrade her is
unsupported by the evidence. As determined by the ALJ, appellant
"knowingly chose not to conduct a search consistent with demands
of that day[.]"
We also disagree with appellant's contention the ALJ and CSC
failed to apply the concept of progressive discipline in upholding
her removal from employment.
[J]udicial decisions have recognized that
progressive discipline is not a necessary
consideration when reviewing an agency head's
choice of penalty 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 public interest.
[Hermann, supra, 192 N.J. at 33.]
The "level of seriousness" accompanying appellant's offense
warranted her removal from employment at NJSP.
We conclude the ALJ's and CSC's decisions are supported by
sufficient credible evidence on the record as a whole. Appellant's
arguments to the contrary are without sufficient merit to warrant
further discussion. R. 2:11-3(e)(1)(D) & (E).
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Affirmed.
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