IN THE MATTER OF M.M., DEPARTMENT OF HUMAN SERVICES (NEW JERSEY CIVIL SERVICE COMMISSION) (CONSOLIDATED) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NOS. A-4038-17T4
A-2490-18T3
APPROVED FOR PUBLICATION
IN THE MATTER OF M.M., 1
DEPARTMENT OF HUMAN March 19, 2020
SERVICES. APPELLATE DIVISION
__________________________
Submitted February 3, 2020 – Decided March 19, 2020
Before Judges Messano, Vernoia and Susswein.
On appeal from the New Jersey Civil Service
Commission, Docket Nos. 2018-138 and 2019-378.
Szaferman, Lakind, Blumstein & Blader, PC,
attorneys for appellant M.M. (Robert G. Stevens, on
the briefs).
Gurbir S. Grewal, Attorney General, attorney for
respondent New Jersey Civil Service Commission
(Melissa Dutton Schaffer, Assistant Attorney General,
of counsel in A-4038-17; Melissa H. Raksa, Assistant
Attorney General, of counsel in A-2490-18; Steven
Michael Gleeson, Deputy Attorney General, on the
briefs).
The opinion of the court was delivered by
VERNOIA, J.A.D.
1
Initials are used for appellant M.M. and her co-workers in accordance with
those designations as used in the Final Administrative Actions of the Civil
Service Commission. See N.J.A.C. 4A:7-3.2(g).
In these two appeals (A-4038-17 and A-2490-18) scheduled back-to-
back and now consolidated for purpose of issuing a single opinion, we decide
whether the Civil Service Commission (Commission) properly concluded it
lacked jurisdiction over M.M.'s appeals from her appointing authority's two
findings she violated the New Jersey State Policy Prohibiting Discrimination
in the Workplace (State Policy), N.J.A.C. 4A:7-3.1, and the concomitant
imposition of disciplinary action for each violation. Based on our review of
the record, we conclude M.M. could not directly appeal to the Commission
because N.J.A.C. 4A:7-3.2(n) authorizes direct appeals to the Commission
only where disciplinary action is not imposed. Because disciplinary a ction
was imposed in both instances here, M.M. could not file a direct appeal with
the Commission and was required to first challenge the findings and discipline
in a departmental hearing or, if applicable, pursuant to the procedure in a
collection negotiations agreement in accordance with N.J.A.C. 4A:2-2 and -3.
I.
M.M. is a career service employee at a State hospital which, during the
times relevant to these appeals, was first administered by the New Jersey
Department of Human Services (DHS) and later by the New Jersey Department
of Health (DOH). In 2012, she filed a departmental complaint alleging her
supervisor subjected her to sexual harassment, discrimination, and a hostile
A-4038-17T4
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work environment in violation of the State Policy. DHS's Equal Employment
Opportunity (EEO) office investigated M.M.'s allegations and made findings,
which DHS's Assistant Commissioner reviewed before determining M.M.'s
allegations were not substantiated.
The Commission denied M.M.'s appeal from the Assistant
Commissioner's determination and rejected her request that the matter be
referred to the Office of Administrative Law for an evidentiary hearing. On
her appeal from that decision, we concluded an evidentiary hearing was
required to determine if the State Policy had been violated, reversed the
Commission's decision, and remanded for a hearing. In re M.M., No. A-5949-
12 (App. Div. May 12, 2015) (slip op. at 14).
On remand, an administrative law judge conducted a nine-day hearing
and issued a March 21, 2019 decision finding M.M. failed to "demonstrate by
a preponderance of the credible evidence any violations of the State Policy
against discrimination by [the hospital], any sexual harassment or hostile work
environment," or that "there was any retaliation . . . as a result of [M.M.'s]
filing of" her complaints. The Commission accepted the administrative law
judge's finding and issued a final decision dismissing M.M.'s appeal.
A-4038-17T4
3
M.M. appealed from the Commission's decision, and her appeal is
separately pending before this court.2 We do not address that appeal, and offer
no opinion on its merits. We reference M.M.'s initial departmental complaint,
its disposition, and her appeal from the Commission's decision only to provide
context for our discussion of M.M.'s appeals from two other determinations we
address in this opinion.
A-4038-17
In July 2017, DHS's Office of Legal Affairs sent M.M. a letter advising
that a co-worker, Dr. J.U., reported M.M. for referring to a co-employee as a
"bitch" in a voicemail message concerning work-related matters. The letter
further advised that an investigation and review of the voicemail recording
confirmed M.M.'s use of the term "bitch"; her use of the term violated the State
Policy; and the matter was being referred to the hospital's director or chief
executive officer for administrative action. The letter further noted M.M.
could appeal the finding she violated the State Policy to the Commission, but
if she was "subjected to disciplinary action as a result of [the] finding, [she]
must appeal through the [hospital's] disciplinary process."
M.M. appealed the finding to the Commission, denied ever referring to a
co-employee as a "bitch," and requested an evidentiary hearing. M.M. further
2
In re M.M., A-4189-18 (App. Div. filed May 30, 2019).
A-4038-17T4
4
asserted that the hospital, DHS, and Dr. J.U. continued to discriminate and
harass her, and that they retaliated against her because she complained in 2012
about the discriminatory, harassing, and retaliatory conduct that was the
subject of the then-pending hearing before the administrative law judge.
The Commission responded to the appeal in a letter stating that where a
violation of the State Policy has been substantiated but no disciplinary action
is recommended, N.J.A.C. 4A:7-3.2(n) provides that "the party(ies) against
whom the complaint was filed may appeal the determination to the
[Commission] . . . within [twenty] days of receipt of the final letter of
determination." The Commission further noted that where a violation has been
substantiated and disciplinary action is recommended in the final letter of
determination, N.J.A.C. 4A:7-3.2(n)(3) provides "any party charged . . . may
appeal using the procedures set forth in N.J.A.C. 4A:2-2 and [-]3."
The Commission noted that, although DHS determined M.M. violated
State Policy, the hospital had not yet disclosed if disciplinary action would be
taken. The Commission requested that the parties provide information about
whether M.M. was subject to disciplinary action so the appeal could proceed in
the proper manner.
On October 3, 2017, the hospital, as the appointing authority, issued a
Preliminary Notice of Disciplinary Action charging M.M. with conduct
A-4038-17T4
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unbecoming a public employee in violation of N.J.A.C. 4A:2-2.3(a)(6);
discrimination and/or sexual harassment in violation of N.J.A.C. 4A:2 -
2.3(a)(9); and other sufficient cause in violation of N.J.A.C. 4A:2-2.3(a)(12).
The notice stated M.M. was subject to an official written reprimand, which
constituted minor discipline; M.M. "admitted to the EEO Investigator that
[she] used [the] term ["bitch"] on the voice message"; and it was "determined
that [M.M.] violated the" State Policy.
In an October 26, 2017 letter, the Commission informed M.M.'s counsel
it would not consider the appeal because M.M. received disciplinary action.
The Commission reiterated that N.J.A.C. 4A:7-3.2(n) allowed a direct appeal
to the Commission from a determination an employee violated the State Policy
only where no disciplinary action is taken, and, because disciplinary action
was taken by the hospital, M.M. could appeal "using procedures set forth in
N.J.A.C. 4A:2-2 and [-]3."
The Commission later issued a March 29, 2018 final decision dismissing
the appeal and finding that, because the hospital imposed discipline in the form
of an official written reprimand, N.J.A.C. 4A:7-3.2(n)(3) required that M.M.
appeal in a departmental hearing pursuant to N.J.A.C. 4A:2-2 and -3. The
Commission further noted that "[w]hether major or minor discipline is
recommended, an employee may be represented at the departmental hearing by
A-4038-17T4
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an attorney where the full opportunity to present arguments and witnesses is
afforded." The Commission rejected M.M.'s contention the hospital's actions
were related to her prior discrimination and harassment claim, noting M.M.
"presented no substantive evidence" to support the argument. We consider
M.M.'s appeal from the Commission's final decision in A-4038-17.
A-2490-18
Four months later, in a July 30, 2018 letter, the DOH's Office of
Diversity and Equity Services (ODES) informed M.M. that it completed an
investigation of an August 2017 complaint from Dr. J.U. that M.M. violated
the State Policy by breaching confidentiality. More particularly, ODES
advised M.M. that its investigation revealed M.M. violated the State Policy by
discussing her participation in an EEO office investigation with a co-
employee, Dr. J.B. ODES substantiated the violation and informed M.M. the
matter would "be forwarded to [the hospital's] Office of Employee Relations
for review and further action as [it] deem[s] appropriate."
M.M. appealed the finding to the Commission, which responded in a
letter requesting that the parties explain whether M.M. would be subject to
disciplinary action so the proper appeal process could be determined. The
hospital provided the Commission with a Preliminary Notice of Disciplinary
Action charging M.M. with conduct unbecoming a public employee, in
A-4038-17T4
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violation of N.J.A.C. 4A:2-2.3(a)(6); other sufficient cause, in violation of
N.J.A.C. 4A:2-2.3(a)(12); and violating Administrative Order 4:08 E1.2;3 and
imposing a five-day suspension. In a letter, the Commission informed M.M.'s
attorney that it lacked jurisdiction under N.J.A.C. 4A:7-3.2(n)(3) to consider
the appeal because the hospital imposed disciplinary action. M.M.'s counsel's
request that the Commission reconsider its decision was denied, and M.M.
appealed. In A-2490-18, we consider M.M.'s appeal from the Commission's
decision.
In each appeal, M.M. presents the following, identical arguments for our
consideration:
POINT I
THE CIVIL SERVICE COMMISSION ERRED IN
CONCLUDING THAT IT LACKED JURISDICTION
TO HEAR APPELLANT'S APPEAL OF THE
DISCIPLINARY ACTION TAKEN AGAINST HER
BY THE DEPARTMENT OF HUMAN SERVICES
[AND DEPARTMENT OF HEALTH] AND HER
CLAIM THAT THAT DISCIPLINARY ACTION
CONSTITUTES RETALIATION FOR HER CLAIM
AGAINST THE DEPARTMENT[S] ALLEGING
VIOLATIONS OF THE STATE POLICY
PROHIBITING DISCRIMINATION IN THE WORK
PLACE[.]
3
The Preliminary Notice of Disciplinary Action is dated August 22, 2018, one
day prior to the Commission's letter requesting to be advised if disciplinary
action was to be imposed.
A-4038-17T4
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POINT II
THE DEPARTMENT OF HUMAN SERVICES'
[AND DEPARTMENT OF HEALTH'S]
COMPLAINT[S] AGAINST APPELLANT, AND
HER DEFENSE TO [THOSE] COMPLAINT[S],
RAISE MATERIAL AND CONTROLLING ISSUES
OF FACT THAT REQUIRE AN EVIDENTIARY
HEARING[.]
II.
"The scope of appellate review of a final agency decision is limited,"
and we will not overturn an agency's final decision "in the absence of a
showing that it was arbitrary, capricious or unreasonable, or that it lacked fair
support in the evidence." In re Carter, 191 N.J. 474, 482 (2007) (citation
omitted).
Generally, review of an agency decision is
restricted to three inquiries: (1) whether the agency's
action violates express or implied legislative policies,
that is, did the agency follow the law; (2) whether the
record contains substantial evidence to support the
findings on which the agency based its action; and (3)
whether in applying the legislative policies to the
facts, the agency clearly erred in reaching a
conclusion that could not reasonably have been made
on a showing of the relevant factors.
[In re Proposed Quest Acad. Charter Sch. of Montclair
Founders Grp., 216 N.J. 370, 385 (2013)
(quoting Mazza v. Bd. of Trs., 143 N.J. 22, 25
(1995)).]
A-4038-17T4
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The person challenging an agency action has "[t]he burden of showing that an
action was arbitrary, unreasonable or capricious." McGowan v. N.J. State
Parole Bd., 347 N.J. Super. 544, 563 (App. Div. 2002) (citing Barone v. Dep't
of Human Servs., Div. of Med. Assistance & Health Servs., 210 N.J. Super.
276, 285 (App. Div. 1986)).
Here, M.M. challenges the Commission's determination she could not
appeal directly to the Commission from the hospital's findings and imposition
of discipline for violations of the State Policy. The Commission based its
determination on N.J.A.C. 4A:7-3.2(n), which sets forth the procedure for
appeals from findings an employee violated the State Policy, and from the
imposition of discipline for a violation. In pertinent part, the regulation states:
(n) In a case where a violation has been substantiated,
and no disciplinary action recommended, the
party(ies) against whom the complaint was filed may
appeal the determination to the Civil Service
Commission . . . within 20 days of receipt of the final
letter of determination by the State agency head or
designee.
....
3. If disciplinary action has been recommended in the
final letter of determination, any party charged who is
in the career service may appeal using the procedures
set forth in N.J.A.C. 4A:2-2 and [-]3.
[N.J.A.C. 4A:7-3.2(n) and (n)(3) (emphasis added).]
A-4038-17T4
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The regulation provides two appeal processes from determinations an
employee violated the State Policy. Where no disciplinary action is
recommended, an employee may appeal directly to the Commission. N.J.A.C.
4A:7-3.2(n). In contrast, an employee for whom disciplinary action has been
recommended may appeal using the procedures set forth in N.J.A.C. 4A:2 -2
and -3. N.J.A.C. 4A:7-3.2(n)(3).
M.M. does not dispute that the letter of reprimand and five-day
suspension the hospital imposed for her violations of the State Policy
constitute disciplinary action within the meaning of N.J.A.C. 4A:7-3.2(n) and
(n)(3).4 She claims, however, the term "may" in the regulations is permissive
and not mandatory. She argues that, even though she was subject to
disciplinary action for both findings she violated the State Policy, an appeal in
accordance with N.J.A.C. 4A:7-3.2(n)(3) was not required, and that she had
the option to appeal directly to the Commission pursuant to N.J.A.C. 4A:7 -
3.2(n). The Commission asserts the term "may" in the regulations refers solely
to an employee's choice to appeal at all—any employee "may" or "may not"
4
N.J.A.C. 4A:2-2 consists of subsections 2.1 through 2.13, and addresses the
imposition of major discipline, which is defined as "[r]emoval," "[d]isciplinary
demotion," and a "[s]uspension or fine for more than five working days,"
N.J.A.C. 4A:2-2.2(a)(1)–(3). N.J.A.C. 4A:2-3 consists of subsections 3.1
through 3.7, and addresses minor discipline, which is defined as "a formal
written reprimand or a suspension or fine of five working days or less,"
N.J.A.C. 4A:2-3.1(a).
A-4038-17T4
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choose to appeal—and does not grant an employee an option to choose the
forum for an appeal once the decision to appeal is made.
We accord "substantial deference to an agency's interpretation of a
statute that the agency is charged with enforcing," Bowser v. Bd. of Trs., 455
N.J. Super. 165, 170-71 (App. Div. 2018) (quoting Richardson v. Bd. of Trs.,
192 N.J. 189, 196 (2007)), and to its "interpretation of . . . regulations within
its implementing and enforcing responsibility," Wnuck v. N.J. Div. of Motor
Vehicles, 337 N.J. Super. 52, 56 (App. Div. 2001). "Such deference is
required because 'agencies have the specialized expertise necessary to enact
regulations dealing with technical matters . . . .'" In re Centex Homes, LLC,
411 N.J. Super. 244, 251 (App. Div. 2009) (quoting N.J. State League of
Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 222 (1999)). We will
sustain an agency's interpretation of its regulations "provided it is not plainly
unreasonable." In re Raymour and Flanigan Furniture, 405 N.J. Super. 367,
376 (App. Div. 2009) (quoting Merin v. Maglaki, 126 N.J. 430, 436-37
(1992)).
To be sure, use of the term "may" connotes the permissive. See Aponte-
Correa v. Allstate Ins. Co., 162 N.J. 318, 325 (2000); Harvey v. Bd. of Chosen
Freeholders, 30 N.J. 381, 391 (1959). But M.M. ignores the plain language
and context of the regulations in arguing the term "may" permits her to choose
A-4038-17T4
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the forum in which her appeal from the hospital's determinations and
imposition of discipline will be heard.
In our interpretation of regulations, we give effect to their plain
language. See J.H. v. R&M Tagliareni, LLC, 239 N.J. 198, 214 (2019) ("A
'regulation should be construed in accordance with the plain meaning of its
language'" (quoting Medford Convalescent & Nursing Ctr. v. Div. of Med.
Assistance & Health Servs., 218 N.J. Super. 1, 5 (App. Div. 1985))). Here, the
plain language of the regulations undermines M.M.'s interpretation.
The regulations describe what an employee "may" do, but only with
respect to appealing; they provide that an employee "may appeal." The term
"may" cannot be logically read or interpreted separately from the term
"appeal." Of course, an employee aggrieved by a finding he or she violated
the State Policy is not required to appeal, and the Civil Service Act, N.J.S.A.
11A:1-1 to 12-6, does not grant the Commission authority to mandate that an
employee appeal such a determination. Thus, the term "may appeal" in the
regulations is consistent with the simple and irrefutable notion that an
aggrieved employee is not obligated to appeal a determination he or she
violated the State Policy; instead the employee "may appeal" if he or she opts
to do so. The use of the term "may appeal" means nothing more or less, and
we cannot properly interpret the regulation in a manner "'other than the "one
A-4038-17T4
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expressed by way of the plain language."'" J.H., 239 N.J. at 214 (quoting U.S.
Bank, NA v. Hough, 210 N.J. 187, 199 (2012)).
Moreover, the term "may appeal," when properly considered in context,
see ibid. (noting a regulation must be construed "in a manner that makes sense
when read in the context of the entire regulation" (quoting Medford, 218 N.J.
Super. at 5)), is wholly unrelated to the venue for the proper filing of an
appeal. Neither regulation provides that an employee may appeal by either
filing a direct appeal with the Commission or by following the appeal
procedures set forth in N.J.A.C. 4A:2-2 and -3, but that is the interpretation of
the regulations M.M. urges.
Under N.J.A.C. 4A:7-3.2(n), an employee who is found to have violated
the State Policy but is not subject to discipline may appeal if he or she chooses
to do so, but if he or she appeals, the regulation provides only for a direct
appeal to the Commission. In contrast, under N.J.A.C. 4A:7-3.2(n)(3), an
employee who is subject to discipline for violating the State Policy may also
choose to appeal, but the regulation only provides for an appeal pursuant to the
procedures in N.J.A.C. 4A:2-2 and -3. If the Commission intended that
employees facing disciplinary action and those not facing disciplinary action
could either file a direct appeal or follow the appeal procedures set forth in
N.J.A.C. 4A:2-2 and -3, the regulations would have expressly provided for
A-4038-17T4
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such a result. We cannot write appeal processes into the regulations that the
Commission did not adopt in the first instance. See J.H., 239 N.J. at 214 ("'[I]t
is not our function to "rewrite a plainly-written enactment[.]"'" (quoting U.S.
Bank, NA, 210 N.J. at 199)).
M.M.'s interpretation of "may," which would grant employees facing
disciplinary action and those not facing disciplinary action the identical appeal
processes, renders the distinct and plain language of each of the regulations a
nullity. The Commission's adoption of separate regulations providing for
separate appeal processes makes no logical sense if each of the regulations
could be properly interpreted to allow identical appeal processes. In other
words, there is no reason for the two regulations if, as M.M. suggests, they
each provide an identical appeal process. We are required to interpret the
regulation sensibly and not in a manner that leads to an absurd result. In re
N.J.A.C. 12:17-2.1, 450 N.J. Super. 152, 166-67 (App. Div. 2017). The
Commission's interpretation of the regulations—which provides for different
appeal processes depending on whether disciplinary action has been
imposed—is reasonable because it gives effect to the distinctive, but plain,
language of the two regulations.
In sum, M.M.'s interpretation of the term "may" ignores the plain
language of the regulations, fails to give effect to the separate regulations, and
A-4038-17T4
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is inconsistent with the Commission's interpretation, which we do not find is
"plainly unreasonable," see In re Raymour and Flanigan, 405 N.J. Super. at
376. Under our "highly circumscribed" review of the Commission's
interpretation of the regulations, see J.H., 239 N.J. at 214, we discern no basis
to reverse its determination that, because the hospital imposed disciplin ary
actions for her violations of the State Policy, M.M. was required to appeal in
accordance with the procedures set forth in N.J.A.C. 4A:2-2 and -3.
The hospital imposed minor discipline for each violation, N.J.A.C. 4A:2 -
3.1(a), and M.M. is therefore required to appeal in the first instance in
accordance with the requirements, if any, of an applicable collective
negotiations agreement, N.J.A.C. 4A:2-3.2(a), or, if there is no applicable
collective negotiations agreement, she must pursue her appeal in a
departmental hearing, N.J.A.C. 4A:2-3.2(b).5
5
In the Commission's decision on M.M.'s appeal from the imposition of the
written reprimand, it noted that M.M. is represented by "the Communications
Workers of America . . ., which has opted out of the disciplinary process as
regulated in" N.J.A.C. 2:2-1(c) and (d). The record does not include a copy of
an applicable collective negotiations agreement, and we offer no opinion as to
whether M.M.'s appeal must be in a departmental hearing or in another forum
in accordance with a procedure set forth in a collective negotiations agreement.
We hold only that M.M. could not file a direct appeal with the Commission,
and she must pursue her appeal in accordance with the requirements of
N.J.A.C. 4A:7-3.2(n)(3).
A-4038-17T4
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Contrary to M.M.'s contention, requiring that she pursue her appeals in
accordance with the requirements of N.J.A.C. 4A:7-3.2(n)(3) does not deprive
her of a hearing. She is entitled to either a departmental hearing at which she
has the right to counsel, to review the evidence, and to present evidence and
witnesses, N.J.A.C. 4A:2-3.6(c); or a hearing in accordance with the procedure
set forth in an applicable collective negotiations agreement. In addition, M.M.
is not without recourse to the Commission. She may appeal to the
Commission following a departmental hearing resulting in minor discipline as
permitted by, and in accordance with, N.J.A.C. 4A:2-3.7.
M.M. also contends she was entitled to appeal directly to the
Commission pursuant to N.J.S.A. 11A:2-24, which provides that an employee
"who is the subject of a reprisal action . . . may appeal such action to
the . . . Commission." We do not address the issue because M.M. did not
argue before the Commission that she was subject to a purported "reprisal
action" within the meaning of N.J.S.A. 11A:2-24, or that she was entitled to a
direct appeal to the Commission under the statute. Nieder v. Royal Indem. Ins.
Co., 62 N.J. 229, 234 (1973); see also State v. Robinson, 200 N.J. 1, 19 (2009)
("Appellate review is not limitless. The jurisdiction of appellate courts rightly
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is bounded by the proofs and objections critically explored on the record
before the trial court by the parties themselves.").
Affirmed.
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