IN THE MATTER OF VICTOR BERMUDEZ, CUMBERLAND COUNTY, DEPARTMENT OF CORRECTIONS (NEW JERSEY CIVIL SERVICE COMMISSION) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-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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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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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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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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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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[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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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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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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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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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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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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