S.B. v. State, DOCKET NO. A-2930-16T1

CourtNew Jersey Superior Court – Appellate Division
Docket NumberDOCKET NO. A-2930-16T1
Decision Date12 April 2019

S.B., Appellant,

DOCKET NO. A-2930-16T1


Argued September 25, 2018
April 12, 2019


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.

Before Judges Rothstadt and Natali.

On appeal from the New Jersey Transit Police Department, New Jersey Transit Corporation, Agency Number II-2016-024.

Catherine M. Elston argued the cause for appellant (C. Elston & Associates, LLC, attorneys; Catherine M. Elston, of counsel and on the briefs).

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Michael S. Rubin argued the cause for respondents (Gurbir S. Grewal, Attorney General, attorney; Jason W. Rockwell, Assistant Attorney General, of counsel; Michael S. Rubin, Deputy Attorney General, on the brief).


S.B.1 appeals from the New Jersey Transit Corporation's (NJT) decision to terminate his employment with NJT's Police Department without a hearing. Prior to discharging S.B., NJT filed disciplinary charges against him based on allegations that he made racially and sexually offensive remarks on duty. Because we conclude S.B. (1) was an at-will, probationary employee under the collective negotiations agreement (CNA) governing the parties' employment relationship that permitted NJT to fire him "without cause and for any reason," and (2) lacked a property interest in continued public employment, we affirm NJT's decision to discharge S.B. pursuant to the CNA without affording him a pre-discharge hearing. But, we remand to NJT for a post-discharge hearing consistent with S.B.'s liberty interest in clearing his name and removing the allegations underlying the disciplinary charges from his employee personnel file because those charges imperil S.B.'s ability to secure future public employment.

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NJT hired S.B. as a police officer on December 10, 2014. The CNA governing their employment relationship was negotiated by NJT and the Police Benevolence Association, S.B.'s former union. Under the terms of the CNA, S.B. was hired subject to a probationary period of employment that was extended three times, and which was ultimately set to expire on June 10, 2017. The CNA provides that NJT police officers serving probationary periods of employment "may be discharged with or without cause and for any reason without recourse to the grievance/arbitration provisions" of the CNA.

By letter dated October 27, 2016, NJT Police Deputy Chief Laura Hester advised S.B. that NJT had received a complaint about actions he allegedly committed on July 29, 2016. The October 2016 letter also advised S.B. that a member of the Office of Professional Standards would contact him to schedule an interview to discuss the allegations. Following that interview, NJT issued disciplinary charges and specifications against S.B. on or about January 4, 2017, charging him with conduct unbecoming an officer, discourtesy, and unsatisfactory performance. The charges alleged S.B. made racially and sexually offensive remarks that were corroborated by multiple witnesses. Though the charges maintained S.B. behaved in a similar manner on multiple

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occasions, NJT identified only the July 29, 2016 incident by date. The charges also stated that S.B. "admitted to the above allegations during his interview," a statement S.B. claims is false.

According to the January 4, 2017 charges, S.B. was subject to major discipline ranging from a six-day suspension to employment termination, and was required to plead guilty or not guilty. NJT Police Chief Christopher Trucillo served S.B. with the charges on January 6, 2017.

By letter dated January 27, 2017, S.B. pleaded not guilty to all of the charges, requested a hearing, and demanded discovery. According to NJT, on February 3, 2017, Trucillo "elected not to pursue" the disciplinary proceedings and, instead, terminated S.B.'s employment effective immediately. The rationale provided in a February 3, 2017 termination letter was that S.B.'s employment was "at will" and that NJT had the "right to terminate" him "at any time, in [NJT's] sole discretion, with or without cause" and "for any reason without recourse to the grievance/arbitration provisions" of the CNA. S.B. maintains the "charges, and the investigatory documents underlying the charges, remain in [his] employment record with [NJT] to this day," a contention that NJT does not directly dispute.

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In a February 10, 2017 letter, S.B.'s counsel demanded that Hester immediately reinstate him to his position and that he receive back-pay for the time elapsed since his termination. The February 10, 2017 letter also advised that the circumstances of S.B.'s discharge warranted procedural due process protections. In a March 1, 2017 response, NJT stated that as a probationary employee, S.B.'s "employment was completely at-will," he "could be discharged without recourse," and "[h]e was not entitled to the grievance/arbitration protections of the CNA." This appeal followed.


NJT raises two jurisdictional challenges. First, NJT argues that this case is merely a contract dispute and the PBA could have pursued other administrative relief on S.B.'s behalf, so the appeal should be dismissed for failure to exhaust administrative remedies. This argument is meritless. The discharge letter NJT sent to S.B. states that he may not invoke any administrative relief provided for in the CNA, and NJT further advised him that he "could be discharged without recourse" and that "[h]e was not entitled to the grievance/arbitration protections of the CNA."

Next, NJT contends its "discharge of S.B. without a hearing was not a final agency action appealable under [Rule] 2:2-3(a)(2)" because its "decision

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to discharge S.B. did not follow an adjudicatory proceeding where a record was developed," which NJT maintains is a prerequisite to final agency actions or decisions pursuant to Frapaul Construction Co. v. Transportation Dep't of New Jersey, 175 N.J. Super. 84 (App. Div. 1980). We disagree.

Rule 2:2-3(a)(2) provides that "appeals may be taken to the Appellate Division as of right . . . to review final decisions or actions of any state administrative agency or officer . . . ." In Frapaul, the New Jersey Department of Transportation (DOT) awarded a contract to the petitioner, a construction company, for construction work after Frapaul, an independent contractor, placed the winning bid on a procurement contract. Id. at 87-88. After a dispute arose as to payment due under the contract, Frapaul submitted a claim to DOT pursuant to the New Jersey Contractual Liability Act, N.J.S.A. 59:13-1 to -10. Frapaul, 175 N.J. Super. at 89. DOT processed the claim through its Claims Committee, which gathered facts, considered Frapaul's claim, and decided to deny it, a decision the DOT's Deputy Commissioner approved. Id. at 87-89. Frapaul appealed and we held:

it [is] clear that the conclusions of the DOT Claims Committee are not final decisions within contemplation of [Rule] 2:2-3(a)(2). The Claims Committee does not provide a judicial type of hearing such as is necessary to adjudicate a construction contract controversy. Its proceedings do not provide for discovery nor do they

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provide the DOT an opportunity to present its own witnesses or the contractor the right to confront and cross-examine the DOT personnel. The witnesses who are presented to the Committee by the contractor do not testify under oath and, in addition, no evidence is introduced or marked.

[Id. at 91 (citations omitted).]

In stark contrast to the DOT Claims Committee's inability to provide "a record adequate for appellate review of construction contract claims," ibid., NJT concedes it could have "elected to hold a disciplinary hearing," but simply chose not to. Further, the constitutionality of NJT's decision to discharge S.B. without a hearing, as opposed to a complex construction contract dispute, is capable of adjudication on this record. Thus, S.B. properly appealed from that final decision "as of right" under Rule 2:2-3(a)(2).


Turning to the merits of this appeal, S.B. maintains NJT unconstitutionally deprived him of his interests in property and liberty by charging him with stigmatic allegations then terminating his employment without a pre-discharge hearing. In this regard, S.B. argues that N.J.S.A. 27:25-15.1c entitled him to continued public employment despite his probationary status under the CNA, and claims NJT's actions in charging him with racially and sexually offensive conduct affected his liberty interests. According to S.B., NJT unlawfully

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deprived him "of the right to invoke certain statutory defenses" related to his discharge by denying him a hearing.

In response, NJT contends the CNA "controls and allows [NJT] to discharge probationary employees with or without cause and without a disciplinary hearing." NJT also argues that by initially issuing disciplinary charges, it did not waive any right to discharge S.B. pursuant to the CNA.

Our review of final agency action is limited, and the agency's decisions typically will stand "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) (quoting Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963)). "[O]n questions of law, such as whether" a public employee "was deprived of due process," however, "we are not bound by the agency decision and will review the agency's determination de novo." George v. City of Newark, 384 N.J. Super. 232, 238-39 (App. Div. 2006).


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