A state appeals court on Friday upheld the Public Employment Relations Commission’s dismissal of a grievance filed against the Office of the Public Defender by an investigator twice suspended for bad behavior.
The Appellate Division panel rejected Denise Cole’s allegations that the suspensions were in retaliation for engaging in union activity as a shop steward, which is protected behavior.
“[C]ole failed to point to any credible evidence in the record that shows PERC’s decision to dismiss the complaint was either arbitrary, capricious or unreasonable,” the panel said in Cole v. Office of the Public Defender.
Cole was hired as an investigator in 2000 and became a shop steward for the union, the Communications Workers of America, in 2002.
On Jan. 16, 2005, a day after she had reached a settlement on behalf of other unionized employees regarding work assignments, promotions and communications issues, her own labor problems began.
She was at a meeting with Richard Friedman, the managing attorney in the Newark office, to discuss potential attorney-client privilege issues in her expected testimony in court the next day. Cole, according to the court opinion, reacted negatively when told she would be taking instructions from Assistant Deputy Attorney General Gina Hunt.
Friedman said Cole stated that she didn’t have to listen to Hunt and that the privilege didn’t apply to her. Cole, he said, began approaching Hunt, covered her ears and began chanting “lawyer, lawyer, lawyer.”
Cole was charged with insubordination and conduct unbecoming a public employee and was suspended for a day.
Cole’s second run-in with Friedman came on June 12, 2006, almost three months after she had emailed Friedman and other officials about what she thought was a violent workplace incident. Friedman approached her at a copy machine and asked about the location of another employee.
Friedman said Cole responded belligerently, shouting “[W]hy are you treating me like this? You know I’m not perfect, I make mistakes, you can’t treat me like this.”
That episode ended with a five-day suspension of Cole for insubordination and conduct unbecoming.
The union filed unfair-labor-practice charges against the OPD. In March 2011, PERC adopted the findings of a hearing officer and dismissed the complaint. The hearing officer said the testimony from Friedman and other supervisors was more credible than that from Cole, who alleged she was being retaliated against because of her work as a shop steward. Cole then appealed.
“The record contains no evidence to suggest that this court should divert from the hearing examiner’s credibility determinations,” Appellate Division Judges Paulette Sapp-Peterson, Susan Maven and Richard Hoffman wrote.
The one-day suspension was “fair punishment” for her conduct at the Jan. 16, 2005, meeting with Friedman and Hunt, the judges said.
There is some indication that the later five-day suspension was “in part” hostile activity toward her union work, the judges said, but added, there is “ample evidence” that the office would have disciplined her anyway because of her behavior at the copy machine.
Assistant Public Defender Dale Jones says the panel properly upheld the agency’s findings.
“We believe our managers acted appropriately at all times and properly disciplined Ms. Cole,” he says.
Cole’s attorney, Ronald Hunt, of Newark’s Hunt, Hamlin & Ridley, did not return a telephone call. •