IN THE MATTER OF THE CIVIL COMMITMENT OF C.F., SVP-690-14(ESSEX COUNTY AND STATEWIDE)(RECORDIMPOUNDED) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-5554-14T3
RUGIATU SESAY,
Complainant-Appellant,
v.
BAYSHORE COMMUNITY HOSPITAL,
Respondent-Respondent.
_______________________________
Submitted April 4, 2017 – Decided April 19, 2017
Before Judges Ostrer and Vernoia.
On appeal from the New Jersey Division on
Civil Rights, Department of Law and Public
Safety, Docket No. EN18WB-63987.
Rugiatu Sesay, appellant pro se.
Fox Rothschild LLP, attorneys for respondent
Bayshore Community Hospital (William M.
Honan, of counsel; Sarah Beth Johnson, on
the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent New Jersey Division
on Civil Rights (Andrea M. Silkowitz,
Assistant Attorney General, of counsel;
Beverley A. Lapsley, Deputy Attorney
General, on the brief).
PER CURIAM
Rugiatu Sesay appeals from a June 29, 2015 final agency
determination of the New Jersey Division on Civil Rights
(Division) finding no probable cause supporting her claim that
Bayshore Community Hospital (Bayshore) engaged in national
origin and disability discrimination and retaliation in
violation of the New Jersey Law Against Discrimination (LAD),
N.J.S.A. 10:5-1 to -49. We affirm.
Sesay became employed at Bayshore in 1995 as a nurse's
aide. In 2007, Sesay was promoted to the position of registered
nurse, and was employed in that capacity until May 2013, when
Bayshore terminated her employment.
On June 18, 2013, Sesay filed a verified complaint with the
Division alleging Bayshore discriminated against her by
terminating her employment based on her national origin,1 her
alleged disability, and in retaliation for making a prior
complaint about national origin discrimination. Bayshore
disputed the allegations, claiming Sesay was terminated in
accordance with its established progressive discipline policy
for multiple performance issues.
The Division investigated Sesay's allegations. The
Division served a document and information request upon
1 Sesay alleged she was born in the Republic of Sierra Leone.
2 A-5554-14T3
Bayshore. Bayshore's responses included a detailed written
statement of position and answers to the Division's information
requests. In response to the Division's document demands,
Bayshore provided handbooks and policy manuals, job
descriptions, policies, grievance procedure records, and the
complete personnel files of Sesay and two other employees, M.Z.
and L.R.2 Sesay had alleged M.Z. and L.R. did not share her
national origin, alleged disability, or history of complaining
about discriminatory treatment and were not terminated although
they engaged in the same conduct that Bayshore relied upon to
terminate Sesay's employment. The Division also interviewed
Bayshore's vice president of nursing, Sesay's nurse manager, a
nurse manager who reviewed a complaint made by Sesay concerning
discipline that had been imposed, and two black registered
nurses about their treatment as Bayshore's employees. One of the
nurses was from Cameroon and the other was from the West Indies.
In a detailed report, the Division found
the investigation did not support [Sesay's]
allegation that [Bayshore] discriminated
against her based on her national origin or
race.[3] The investigation found that [Sesay]
2 We employ initials to protect the privacy of the personnel
information of these non-parties to this dispute.
3 Although Sesay's verified complaint did not allege race
discrimination, the Division considered and investigated her
(continued)
3 A-5554-14T3
had four performance infractions stemming
from patient complaints, and that in
accordance with its progressive
disciplin[ary] policy, [Bayshore] discharged
her. The investigation showed that
[Bayshore] imposed progressive discipline
for employees of other races and national
origins for similar conduct. Regarding her
allegation of disability discrimination,
[Sesay] acknowledged that [Bayshore] granted
her ten weeks of medical leave, and plainly
stated that [Bayshore] did not discharge her
because she took medical leave or because of
any medical condition. Lastly, the
investigation showed no causal link between
[Sesay's] 2011 internal complaint of race
discrimination and her 2013 discharge.
Rather, the investigation showed that in
2011 [Bayshore] reviewed [Sesay's] race
discrimination complaint, determined that
[Sesay] had been differentially treated in a
discipline matter because of her race, and
rescinded the discipline. Based on the
investigation, and in the absence of any
persuasive evidence of a discriminatory or
retaliatory animus, this case is closed
[based on a finding of no probable cause].
On June 25, 2015, the Division "determined pursuant to N.J.S.A.
10:5-14 and N.J.A.C. 13:4-10.2 that there is no probable cause
to credit the allegations of the complaint and the file is
therefore closed." This appeal followed.
On appeal, Sesay argues:
(continued)
national origin discrimination claim also as a claim of racial
discrimination.
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THE DIVISION [ON] CIVIL RIGHTS FAILED TO
PROPERLY INVESTIGATE THE CASE AND IT SHOULD
BE DECIDED BY A JURY.
Our review of the Division's decision is a limited one.
Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). "We
accord 'a "strong presumption of reasonableness" to an
administrative agency's exercise of its statutorily delegated
responsibilities.'" Wojtkowiak v. New Jersey Motor Vehicle
Comm'n, 439 N.J. Super. 1, 13 (App. Div. 2015) (quoting Lavezzi
v. State, 219 N.J. 163, 171 (2014)). We "must survey the record
to determine whether there is sufficient credible competent
evidence in the record to support the agency head's
conclusions." Ibid. (quoting Clowes, supra, 109 N.J. at 587).
We are also required to give due regard to the agency's
expertise. Ibid. "We may reverse the Director's decision only if
'the Director's finding is clearly a mistaken one and so plainly
unwarranted that the interests of justice demand intervention
and correction.'" Ibid. (quoting Clowes, supra, 109 N.J. at
588). We "will not upset an agency's ultimate determination
unless the agency's decision is shown to have been 'arbitrary,
capricious, or unreasonable, or [] not supported by substantial
credible evidence in the record as a whole.'" Ibid. (quoting
Barrick v. State, 218 N.J. 247, 259 (2014)).
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Here, Sesay makes two arguments. She first asserts the
Division failed to properly investigate her claim. The Division
is authorized to conduct investigations following the filing of
a verified complaint alleging discrimination under the LAD,
N.J.S.A. 10:5-14; N.J.S.A. 10:5-8(d), (h). The Division may
"conduct such discovery procedures . . . as shall be deemed
necessary . . . in any investigation." N.J.S.A. 10:5-8(i). "This
'discretionary authority to investigate' is reviewable for an
abuse of discretion." Wojtkowiak, supra, 439 N.J. Super. at 21
(quoting Gallo v. Salesian Soc'y. Inc., 290 N.J. Super. 616, 650
(App. Div. 1996)).
Sesay's contention that the Division failed to investigate
her allegations is undermined by the record. The Division
conducted a comprehensive investigation over a two-year period
that included the review of over 900 pages of documents,
interviews with Bayshore's employees, numerous interactions with
Sesay, and a careful assessment of Sesay's claims in light of
the evidence. We discern no abuse of the Division's discretion
in the manner in which the investigation was conducted and Sesay
fails to demonstrate otherwise.
Sesay's second argument is that her discrimination and
retaliation claims should be decided by a jury. A person
alleging discrimination or retaliation under the LAD has a
6 A-5554-14T3
choice of remedies: they "may pursue their claims
administratively, by filing a verified complaint with the
[Division], or judicially, by directly instituting suit in the
Superior Court." Hernandez v. Region Nine Housing Corp., 146
N.J. 645, 652 (1996) (citing N.J.S.A. 10:5-13). Filing a
complaint in the Superior Court "would normally culminate in a
full-scale plenary trial" before a jury. Sprague v. Glassboro
State Coll., 161 N.J. Super. 218, 225 (App. Div. 1978); see
N.J.S.A. 10:5-13 (providing for jury trials in Superior Court
suits alleging violations of the LAD). Sesay did not opt to file
her complaint in the Superior Court here.
Sesay selected the Division as the forum in which her
complaint would be decided, thereby taking advantage of the more
expeditious administrative process. Hermann v. Fairleigh
Dickinson Univ., 183 N.J. Super. 500, 504-05 (App. Div.),
certif. denied, 91 N.J. 573 (1982). "[H]aving chosen to pursue
her grievance administratively, [however], that chosen remedy
[was] exclusive while it [was] pending and when it [had] been
concluded." Id. at 504; N.J.S.A. 10:5-27. The administrative
remedy chosen by Sesay does not permit or provide for a jury
trial. See Martindale v. Sandvik, Inc., 173 N.J. 76, 93 (2002)
(explaining "a jury trial is not applicable" in administrative
7 A-5554-14T3
proceedings under the LAD). Thus, Sesay is not entitled to the
jury trial she requests for the first time on appeal.
Affirmed.
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