Opinion
DOCKET NO. A-6312-11T1
06-20-2014
IN THE MATTER OF JOHN CHIKOWSKI.
Edward T. Rogan argued the cause for appellant John Chikowski (Edward Rogan & Associates, attorneys; JoAnn Riccardi, on the brief). Robert E. Finn argued the cause for respondent Hudson County (Chasan Leyner & Lamparello, attorneys; Cindy Nan Vogelman, of counsel and on the brief; Mr. Finn, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent The New Jersey Civil Service Commission (Todd A. Widger, Deputy Attorney General, on the statement in lieu of brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Yannotti, St. John and Leone.
On appeal from the Civil Service Commission, Docket No. 2011-2765.
Edward T. Rogan argued the cause for appellant John Chikowski (Edward Rogan & Associates, attorneys; JoAnn Riccardi, on the brief).
Robert E. Finn argued the cause for respondent Hudson County (Chasan Leyner & Lamparello, attorneys; Cindy Nan Vogelman, of counsel and on the brief; Mr. Finn, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent The New Jersey Civil Service Commission (Todd A. Widger, Deputy Attorney General, on the statement in lieu of brief). PER CURIAM
Appellant John Chikowski appeals his termination from his position as a nurse at Hudson County's Meadowview Psychiatric Hospital (Meadowview). The Civil Service Commission (CSC) reversed the administrative law judge (ALJ) and affirmed the decision of respondent Hudson County (County) to terminate Chikowski. Chikowski argues that the CSC's determination is not supported by substantial credible evidence in the record, and that removal was unwarranted. We disagree and affirm.
I.
Meadowview hired Chikowski as a graduate nurse in the Acute Unit in November 2009. In April 2010, Meadowview placed Chikowski on administrative leave based on accusations that he was uncooperative and had engaged in intimidating, harassing, disrespectful, and degrading behavior towards patients and coworkers. Chikowski never resumed work at Meadowview.
A Meadowview administrator assigned to investigate the allegations interviewed Chikowski's coworkers Olivia Hayes and Aileen Peregrino. Hayes reported that Chikowski had "constantly" used profanity while at work, and referred to staff members and patients by inappropriate racial, ethnic, and sexual epithets. Peregrino similarly reported that Chikowski had used profanity while at work "hundreds of times" in reference to staff members.
The County referred Chikowski to Dr. Robert Kanen, a psychologist, for a fitness-for-duty evaluation. Kanen interviewed Chikowski and performed personality tests. Kanen prepared a report on June 17, 2010, finding Chikowski was not mentally ill or "a danger to himself or others." However, Kanen found Chikowski was "seriously lacking in sensitivity to others, [in] awareness of how his own actions affect others, and in his capacity to get along with coworkers and supervisors." Kanen recommended that Chikowski "be referred for social skills training" and "dealt with administratively."
Subsequently, Meadowview asked the County Prosecutor's Office to investigate further. An investigator interviewed Kirti Solanki, Chikowski's former girlfriend, who reported that, in mid-to-late 2009, she and Chikowski got into an argument over whether she would drive Chikowski to work. She stated that Chikowski was angry and screamed: "You better tell me right now or I'm gonna slit your throat open." Although Solanki was upset, she explained she did not feel threatened because Chikowski is "one of those type of people that says 'yea' but do[es]n't mean it[,] and I know that." She added: "He's the type of person if he doesn't get things done his way, he gets really mad, that's all."
The investigator also interviewed Adam Strosberg, Solanki's friend and Chikowski's former employer at Senior Helpers. Strosberg reported that Chikowski expressed concern that he might hurt a patient at Meadowview because the patients are "violent," "they make weapons," and "they are always fighting."
Meadowview's attorney supplied Kanen with transcripts of the interviews with Solanki and Strosberg. On August 5, 2010, Kanen issued an addendum to his report concluding that Chikowski "is severely disturbed with a combination of mental illness and severe personality problems," "would be a threat to patients," and "is psychologically unsuitable to perform the duties of a nurse."
Meadowview issued a Preliminary Notice of Disciplinary Action (PNDA), charging "[i]nability to perform duties," "[c]onduct unbecoming a public employee," "[n]eglect of duty," and "[o]ther sufficient cause" for removal. N.J.A.C. 4A:2-2.3(a)(3), (6), (7), (12). Chikowski was suspended, and a departmental hearing was held on November 16, 2010. At the hearing, all of the charges were sustained, a Final Notice of Disciplinary Action was issued, and Chikowski was removed. Chikowski appealed and the matter was assigned to the Office of Administrative Law (OAL) as a contested case.
A three-day OAL hearing commenced before the ALJ on May 2, 2011. Hayes testified that she often drove Chikowski to work, and that he used vulgar language in reference to patients and staff members while in her car. Hayes also stated that Chikowski told her he looked forward to being "right in the middle of . . . the violence" when the patients become upset.
Peregrino testified that, while other employees use foul language at work, Chikowski used profanity in an "angry" way, often without "even hav[ing] a reason to say the words, . . . he can be by himself and cursing." She also testified that she believed Chikowski had used the "N-word" in reference to a patient.
Dr. Irena Nekrasova, a Meadowview psychiatrist, testified that she had reprimanded Chikowski in December 2009 for using profanity in the chart room so loudly she could hear him through the wall of her office, and she believed patients could have overheard him. Nekrasova testified that she believed there was no need to report Chikowski because she did not hear him use profanity after her reprimand.
Next, Kanen testified, without objection, as an expert psychologist. Kanen explained that he changed his initial conclusion that Chikowski was fit for duty because the transcripts provided by Meadowview's attorney raised "serious concerns" and indicated Chikowski was in "emotional turmoil." Kanen concluded that it was "too risky to say that [Chikowski] should go back to work." Kanen confirmed that he did not meet with Solanki, Strosberg, or Chikowski before he issued the August 2010 addendum because the County did not request that he do so.
Solanki testified to the following. She and Chikowski had gotten into an argument in her room in January 2010. Chikowski demanded to know if Solanki would take him to work the next day, and Solanki responded: "I'm not sure. I don't know right now." At that point, Chikowski became "really, really angry," and stated: "You better tell me right now or else I'm going to slit your throat." Chikowski blocked her in the room. Solanki was scared and crying during the argument.
Chikowski presented two witnesses and testified on his own behalf at the hearing. Shurez Ali and Jayendra Rawal, two of Chikowski's supervisors, testified that Chikowski did not use profanity or racial epithets at work and was a cooperative employee. Chikowski admitted that he used profanity in the locker and lunch rooms at work, but denied using profanity in front of the patients and denied using racial epithets at all.
On April 16, 2012, the ALJ issued an initial decision recommending reversal of the County's termination of Chikowski, finding "no legally competent evidence" to support the charges. The ALJ credited Nekrasova and Solanki, as well as Chikowski's supervisors. The ALJ found Hayes and Peregrino not credible.
Finally, the ALJ rejected Kanen's expert opinion that Chikowski was unfit for duty because Kanen
admitted that it was unusual . . . to have been contacted by [the County] to considerThe County filed an "exceptions" letter with the CSC, disputing the ALJ's findings.
additional information only months after he had given an opinion that an employee was fit for duty[;] admitted that he could not specify the mental illness or personality problem he believed Chikowski had manifested since he met with him and evaluated him[;] did not remember the relationship between Strosberg and Chikowski or what Strosberg said about Chikowski during his interview[; and] fail[ed] to meet with or evaluate Chikowski again[.]
On August 1, 2012, after reviewing the record, the CSC issued a final decision rejecting the ALJ's credibility determinations with respect to Kanen and Peregrino, finding them "arbitrary, capricious and unreasonable." The CSC reasoned that, based on Kanen's opinion and the testimony of Peregrino and Nekrasova regarding Chikowski's use of profanity, "the ALJ's findings that [Chikowski] was fit for duty and had not used inappropriate language cannot be sustained." The CSC made the following seven findings:
The CSC did not address the ALJ's rejection of Hayes' testimony, and did not rely upon her representations in arriving at its decision.
1) In a fitness-for-duty evaluation prepared on June 17, 2010, Kanen found Chikowski fit for duty, "but identified some concerns that needed to be addressed through counseling."
2) In an addendum to the fitness for duty evaluation prepared on August 5, 2010, Kanen found Chikowski unfit for duty based on additional transcripts of the interviews with Solanki and Strosberg.
3) The additional statements by Solanki that Chikowski had threatened to slit her throat, and by Strosberg that Chikowski was afraid that he might harm his patients, "were sufficient reasons" for Kanen to change his conclusion.
4) "No competing psychological examination was presented which disputed Dr. Kanen's determination that [Chikowski] was unfit for duty."
5) "Peregrino witnessed Chikowski use profanity and inappropriate racial epithets to describe patients and coworkers."
6) Nekrasova reprimanded Chikowski for using inappropriate language.
7) Chikowski admitted to using inappropriate language.
Based on these findings, the CSC upheld the charges of conduct unbecoming a public employee (conduct unbecoming) and inability to perform duties (unfit for duty). The CSC found that removal rather than progressive discipline was appropriate, and reinstated Chikowski's removal. Chikowski appeals.
The CSC, however, agreed with the ALJ's recommendation to dismiss the remaining charges.
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II.
We must hew to our limited scope of review of a final administrative decision. In re Proposed Quest Acad. Charter Sch. of Montclair Founders Grp., 216 N.J. 370, 385 (2013). An agency's decision must be affirmed unless "it is arbitrary, capricious, or unreasonable." Ibid. Under this standard, our review is generally limited
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.
[Ibid.]
Here, the CSC rejected the ALJ's recommendation, and some of the ALJ's findings. Under the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -21, the CSC was permitted to "adopt, reject or modify" the ALJ's recommendation, within certain prescribed limitations. N.J.S.A. 52:14B-10(c). The CSC may "reject or modify findings of fact, conclusions of law or interpretations of agency policy in the decision," unrelated to credibility determinations of lay witnesses, if it "state[s] clearly the reasons for doing so." Ibid.; accord N.J.A.C. 1:1-18.6(b). However, the CSC
may not reject or modify any findings of fact as to issues of credibility of lay witness testimony unless it is first determined from a review of the record that the findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record.
[N.J.S.A. 52:14B-10(c); accord N.J.A.C. 1:1-18.6(c).]
III.
In assessing the CSC's decision, we first review the CSC's findings of fact. In doing so, we consider Chikowski's claim that the CSC improperly rejected the ALJ's credibility findings under the APA.
A.
The CSC's first three findings concern Kanen, who found Chikowski unfit for duty in his August 5, 2010 addendum after reviewing the statements by Solanki that Chikowski had threatened to slit her throat, and by Strosberg that Chikowski was concerned that he might harm a patient. Because Kanen was an expert witness, the CSC's review of Kanen's opinion and testimony was "not subject to the constraints of N.J.S.A. 52:14B-10(c)" upon the review of lay witness testimony. See ZRB, LLC v. N.J. Dep't of Envtl. Prot., 403 N.J. Super. 531, 561 (App. Div. 2008). The CSC was instead required only to "state clearly the reasons for" disagreeing with the ALJ's determination regarding Kanen's opinion and testimony. N.J.S.A. 52:14B-10(c).
The CSC gave numerous reasons why it found Kanen's expert opinion and testimony credible. "[M]ost significantly," Kanen demonstrated no "personal animus, bias, or improper motivation" in preparing the addendum. The CSC offered several additional reasons, including that Kanen's first report "was not wholly positive," that "Kanen's testimony was consistent" regarding his concerns about Chikowski's mental state, and that Kanen "provided a reasonable explanation for not interviewing [Chikowski] a second time." The CSC clearly set forth its reasons for rejecting the ALJ's findings with respect to Kanen, and thus under the APA could properly consider Kanen's opinion and testimony.
Chikowski argues it was improper for the CSC to consider Kanen's expert opinion and testimony. Chikowski contends that, because Kanen based the August 5, 2010 addendum on two hearsay statements relating to out-of-work conduct, Kanen offered only an inadmissible net opinion. See Creanga v. Jardal, 185 N.J. 345, 360 (2005) (noting an expert's "bare conclusion unsupported by factual evidence" is an inadmissible net opinion). We reject Chikowski's contention for two reasons.
First, Kanen appropriately considered the statements made by Chikowski to Solanki and Strosberg. Kanen could rely on hearsay statements if they were "of a type reasonably relied upon by experts" in the relevant field. See N.J.R.E. 703. There is no basis in the record to conclude that psychologists conducting fitness-for-duty evaluations would not normally consider such statements. Moreover, Solanki's testimony mirrored and corroborated her statement, and, as the CSC noted, Chikowski did not deny that he made either statement to Solanki and Strosberg. Accordingly, Chikowski's argument that Kanen improperly relied upon hearsay is without merit.
Second, a psychologist conducting an employee evaluation may consider any "selection device" that is "'predictive of or significantly correlated with'" an "important element of work behavior." See In re Vey, 124 N.J. 534, 541 (1991) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 431, 95 S. Ct. 2362, 2378, 45 L. Ed. 2d 280, 304 (1975)) (other quotation marks omitted). Given Chikowski's threat to slit Solanki's throat and admission to Strosberg that he might harm a patient, Kanen could reasonably infer that Chikowski was emotionally volatile. Chikowski's emotional volatility clearly implicates his ability to provide safe care for a volatile and vulnerable population. Consequently, Kanen properly considered Chikowski's out-of-work statements and conduct when assessing his fitness for duty. Because these statements were properly considered, Kanen's addendum was sufficiently supported by objective evidence, and was not a net opinion. See Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 373 (2011).
Chikowski next stresses that Kanen initially found him fit for duty. Kanen testified that he initially believed that, with sensitivity training, Chikowski was "salvageable" before he learned of Chikowski's statements to Solanki and Strosberg. However, Kanen felt that those statements put Chikowski over the "cutoff line considering the fact that he is dealing with psychiatric patients who are seriously disturbed," particularly considering that "these kinds . . . of patients can really trigger strong emotional reactions in workers." Further, as the CSC noted, Kanen explained that while it was unusual, he occasionally changed his determination after receiving additional information. The CSC properly found that Kanen provided "sufficient reasons" why Chikowski's statements to Solanki and Strosberg tipped the balance from his initial opinion, which had noted Chikowski's anger, insensitivity, and "risk for ongoing interpersonal problems with coworkers and patients."
Like the ALJ, Chikowski notes Solanki stated that she did not believe Chikowski meant to harm her, and that Kanen could not remember the details of Strosberg's interview on cross-examination. However, Kanen recalled Strosberg's key statement that Chikowski was concerned that he would harm a patient. Moreover, Solanki's testimony confirmed that Chikowski's threat and anger created real fear.
Chikowski notes that, although Kanen did not reexamine him, Kanen's addendum states that Chikowski has "a combination of mental illness and severe personality problems." On cross-examination, Kanen could not specify a mental illness. Instead, Kanen testified that he "was not giving Chikowski a diagnosis of mental illness," but only noting that he had "real concerns about [Chikowski] at this point, about his stability." Recognizing the limits Kanen placed on his opinion, the CSC appropriately did not rely on his comment about "mental illness." Rather, the CSC relied on Kanen's conclusion that Chikowski was unfit for duty, based on Kanen's earlier examination and testing, combined with the information from the interviews of Solanki and Strosberg. Thus, reexamination was not required.
Accordingly, we cannot find that the CSC's crediting of Kanen was arbitrary, capricious, or unreasonable. We thus uphold the CSC's first three findings.
B.
Chikowski challenges the CSC's fourth finding that "[n]o competing psychological examination was presented which disputed Dr. Kanen's determination that [Chikowski] was unfit for duty." Chikowski notes that the burden of proof is on the employer. N.J.S.A. 11A:2-21. He argues that the CSC drew an adverse inference from his failure to produce a favorable expert opinion, thus improperly shifting the burden of proof to the employee.
The CSC's fourth finding states an undisputed fact. It does not state that the CSC drew an adverse inference or otherwise shifted the burden of proof. We accept the CSC's fourth finding as a simple statement of fact.
In any event, the CSC only referenced this finding in one sentence in its decision. It gave multiple reasons for crediting Kanen, of which this was only one and not the "most significant" reason. Because the CSC gave only limited weight to the absence of a competing expert psychologist, any error was harmless. R. 2:10-2; see Jacobs v. Stephens, 139 N.J. 212, 219 (1995) (applying harmless error to a review of an administrative proceeding).
C.
The CSC's fifth finding was that "Peregrino witnessed Chikowski use profanity and inappropriate racial epithets to describe patients and coworkers." However, the ALJ had found Peregrino was not credible because she "admitted that she only just mentioned" Chikowski's alleged misconduct "because she was upset about the amount of work she was getting as opposed to the amount of work Chikowski was getting." The ALJ had noted that Peregrino "admitted that she did not like Chikowski in general," and "either did not witness the [alleged] misconduct . . . or simply failed to provide sufficient assurances of reliability. In particular, [she] had personal disdain and professional contempt for Chikowski." The ALJ also had observed that Peregrino's "demure manner on direct-examination" was "belied by her quick temper on cross-examination."
The CSC disagreed with the ALJ's finding that Peregrino was not credible. The CSC cited "independent corroboration from [Chikowski] and Dr. Nekrasova that [Chikowski] used profanity in the work place." However, those sources did not corroborate Peregrino's claims that Chikowski used racial epithets and spouted profanity "hundreds of times" at work. Chikowski's supervisors, whose credibility was unchallenged, also contradicted those claims. Further, the first time Peregrino reported that Chikowski had used the "N-word" was at the OAL hearing, where she admitted that she was "not 100 percent sure of the situation and the circumstance" in which he allegedly made the statement.
The CSC next reasoned that "the fact Peregrino only reported this behavior when bringing up the fact that there were disparate assignments bolsters, rather than detracts from her credibility on that issue," because she "did not go out of her way to report" Chikowski's offensive behavior. However, there was ample testimony in the record to support the ALJ's finding that Peregrino's testimony was unreliable because of her bias. "'Bias may be induced by a witness' like, dislike, or fear of a party, or by the witness' self-interest.'" State v. Holmes, 290 N.J. Super. 302, 313 (App. Div. 1996) (quoting United States v. Abel, 469 U.S. 45, 52, 105 S. Ct. 465, 469, 83 L. Ed. 2d 450, 457 (1984)).
In any event, to reject the ALJ's factual findings regarding lay witness testimony, the CSC was required under the APA to do more than show that it "disagree[s] with the [ALJ] or would have decided differently from the evidence presented." Cavalieri v. Bd. of Trs., 368 N.J. Super. 527, 537 (App. Div. 2004). When evaluating the ALJ's credibility determination of lay witnesses, the CSC "may no longer sift through the record anew to make its own decision." Id. at 534. Rather, the CSC must show that the ALJ's credibility "findings are arbitrary, capricious or unreasonable or are not supported by sufficient, competent, and credible evidence in the record." N.J.S.A. 52:14B-10(c).
Because only the ALJ heard Peregrino's live testimony, the CSC based its decision solely on review of the transcripts. Accordingly, we "need give no deference to the agency head on the credibility issue." Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587-88 (1988).
Here, the ALJ's credibility finding with respect to Peregrino was supported by "sufficient, competent, credible evidence in the record." N.J.S.A. 52:14B-10(c); see Cavalieri, supra, 368 N.J. Super. at 534 (holding an ALJ's credibility finding with respect to a lay witness "will be affirmed if it is independently supported by credible evidence"). Accordingly, the ALJ's credibility determination regarding Peregrino was not arbitrary, capricious, or unreasonable. Therefore, "it is not for us or the [CSC] to disturb that credibility determination, made after due consideration of the witnesses' testimony and demeanor during the hearing." H.K. v. State, 184 N.J. 367, 384 (2005). We thus give no weight to the CSC's fifth finding.
D.
The CSC found that Chikowski had used profanity in the workplace as described in Nekrasova's testimony, which the ALJ credited, and Chikowski's own admission. Chikowski does not dispute those findings. Therefore, we uphold the CSC's sixth and seventh findings.
IV.
Excluding the discredited testimony of Peregrino and Hayes, we next determine whether there is sufficient credible evidence to support the CSC's ruling upholding the unfit-for-duty and conduct-unbecoming charges. The properly credited evidence includes Kanen's expert reports and testimony, Solanki's testimony, Chikowski's statement to Strosberg, Chikowski's admissions, and Nekrasova's testimony about Chikowski's occasional use of profanity in the workplace. This evidence is sufficient to support the charges.
A.
"Conduct unbecoming a public employee," N.J.A.C. 4A:2-2.3(a)(6), is an "elastic" phrase encompassing "any conduct which adversely affects . . . morale or efficiency [or] which has a tendency to destroy public respect for municipal employees and confidence in the operation of municipal services." Karins v. City of Atlantic City, 152 N.J. 532, 554 (1998) (quotation marks omitted). In Karins, the court reinstated a sixty-day suspension for conduct unbecoming where a firefighter said a single racial epithet to a police officer, citing administrative decisions finding cursing or profanity to be conduct unbecoming justifying suspension. Id. at 537-38, 555-57. The Court found the firefighter's racial epithet "offends standards of decency," "adversely affects the morale" of other public employees, and "has the tendency to destroy public respect for [public] employees and public confidence in the operation of" the public entity. Id. at 556-57.
As discussed above, the ALJ discredited the allegations by Peregrino and Hayes regarding Chikowski's use of profanity and racial epithets. The remaining credible evidence shows Chikowski's admitted use of profanity in the locker room and lunch room at Meadowview, and his loud use of profanity in the chart room which Nekrasova believed could have been overheard by patients. That evidence was sufficient to find Chikowski violated "'the implicit standard of good behavior which devolves upon one who stands in the public eye as an upholder of that which is morally and legally correct.'" See Karins, supra, 152 N.J. at 555. The already-charged environment of a psychiatric hospital housing disturbed patients requires a high level of professionalism from its nurses and other staff members. It is appropriate to require the staff not to add profanity to that environment. We thus uphold the charge of conduct unbecoming a public employee.
B.
The CSC had before it sufficient evidence to find Chikowski was unfit for duty under N.J.A.C. 4A:2-2.3(a)(3). In finding Chikowski unfit for duty, the CSC primarily considered Kanen's initial report, addendum report, and testimony.
Kanen's initial report found that Chikowski's personality testing "suggests that he is quick to experience strong feelings and may express sudden anger." Kanen cited Chikowski's "severe defensiveness," found him "seriously lacking in sensitivity," and raised "concerns about paranoid ideation, suspiciousness, a lack of interest in people, and a tendency to quickly experience strong feelings such as anger." Kanen concluded that Chikowski was "at risk for frequent conflicts with others due to a lack of insight and social judgment," and that, without "significant change," Chikowski would be "at risk for ongoing interpersonal problems with coworkers and patients" and was "not likely to do well" at his position.
Kanen's concerns were greatly heightened by Chikowski's threat to slit Solanki's throat and Chikowski's admission to Strosberg that he might harm a patient. As a result, Kanen in his addendum and testimony concluded that in light of Chikowski's "severe personality problems," Chikowski "would be a threat to patients" and is "psychologically unsuitable to perform the duties of a nurse." Kanen reiterated in his testimony that Chikowski's emotional volatility made it "too risky" for him to return to work, particularly as he would be "dealing with psychiatric patients who are seriously disturbed," who "can really trigger strong emotional reactions in workers."
Indeed, the testimony showed that in the Acute Unit, the nurses are responsible for the patients with the most severe cases of schizophrenia, schizoaffective disorder, bipolar disorder, and other severe psychiatric conditions. Chikowski admitted to Strosberg that the patients' own violence made him concerned he would hurt a patient. Chikowski's threat to slit his girlfriend's throat evidenced Chikowski's willingness to threaten violence. His profane outburst heard by Nekrasova in possible earshot of patients, as well as his admitted use of profanity at work, demonstrated that his difficulty controlling his anger carried over to work. We therefore conclude that there was sufficient evidence to support the charge of unfitness for duty.
We recognize the CSC's expertise in weighing such evidence. See H.K., supra, 184 N.J. at 384 (noting an agency determination ordinarily "is entitled to deference in respect of the expertise that the agency head brings to the statutory scheme that he or she is charged with administering"); Hersh v. County of Morris, 217 N.J. 236, 242 (2014) (explaining appellate review of an agency's fact-finding must be made "'with due regard also to the agency's expertise'"). The CSC weighed the evidence and determined that Chikowski was unfit for duty. Were we to reverse by reweighing this evidence, we would have "exceeded [our] proper role and inappropriately substituted [our] view for that of the" CSC. In re Carter, 191 N.J. 474, 487 (2007). Given the substantial evidence of unfitness, it was not arbitrary, capricious, or unreasonable for the CSC to find that Chikowski was unfit for duty.
V.
The CSC found that removal was the appropriate disciplinary sanction for the conduct-unbecoming charge because it credited Peregrino's testimony about Chikowski's widespread "use of profanity in referring to patients." Without Peregrino's testimony, the evidence supporting that charge is narrowed to Chikowski's admitted use of profanity in the locker room and lunch room, and his loud use of profanity in the chartroom as overheard by Nekrasova.
Chikowski argues his use of profanity is insufficient grounds for termination. He notes that the record shows other Meadowview employees used profanity in the workplace, that Nekrasova testified she never heard him use profanity after reprimanding him, and that two of his supervisors testified that they did not hear him using profanity. We agree that this more limited use of profanity, though still conduct unbecoming a public employee, would not, standing alone, warrant Chikowski's removal.
The CSC also found that removal was the appropriate disciplinary sanction for the unfit-for-duty charge. Chikowski contends that even if he was unfit for duty, removal was not warranted under the circumstances. The CSC has the authority to employ a variety of disciplinary sanctions, including the removal of an employee, in appropriate circumstances. N.J.S.A. 11A:2-6(a). We "'ha[ve] no power to act independently as an administrative tribunal or to substitute [our] judgment for that of the agency'" when reviewing administrative sanctions. In re Herrmann, 192 N.J. 19, 28 (2007) (quoting In re Polk, 90 N.J. 550, 578 (1982)). We defer to an agency's "wide experience," which "undoubtedly gives it agency expertise" in assessing the seriousness of the misconduct alleged. Bowden v. Bayside State Prison, 268 N.J. Super. 301, 305 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994). Reversal is only appropriate if "the 'punishment is so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness.'" In re Stallworth, 208 N.J. 182, 195 (2011) .
Chikowski argues that removal was disproportionate to the offense because he had no prior disciplinary history. "Under the concept of progressive discipline, one act of misconduct may result in 'minor discipline' merely because it was a first offense, whereas the same misconduct, if repeated, could justify . . . termination." Id. at 198. "[P]rogressive discipline is a flexible concept" that is intended "to promote proportionality and uniformity in the rendering of discipline of public employees." Id. at 195, 199; see West New York v. Bock, 38 N.J. 500, 523 (1962). However, progressive discipline is unnecessary when the misconduct "renders the employee unsuitable for continuation in the position, or when application of the principle would be contrary to the public interest." Herrmann, supra, 192 N.J. at 33; see also Carter, supra, 191 N.J. at 485; Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980); City of Newark v. Massey, 93 N.J. Super. 317, 322-25 (App. Div. 1967). Thus, "some disciplinary infractions are so serious that removal is appropriate notwithstanding a largely unblemished prior record." Carter, supra, 191 N.J. at 484.
Here, as discussed above, Chikowski's threat to slit his girlfriend's throat, his admitted concern that he might hurt a patient, and Kanen's expert opinion stating Chikowski poses a threat to patients, sufficiently demonstrates that he is not competent to care for vulnerable patients with a variety of psychiatric ailments. See Herrmann, supra, 192 N.J. at 36-39 (affirming termination of a Division of Youth and Family Service worker because she had "to interact with children and families, often in crisis"). It was not arbitrary, capricious, or unreasonable for the CSC to find that Chikowski's unfitness for the duties for which he was hired made removal appropriate. See Klusaritz v. Cape May Cnty., 387 N.J. Super. 305, 317 (App. Div. 2006) (affirming the termination of a county CPA without progressive discipline, where the CPA could not competently perform accounting duties), certif. denied, 191 N.J. 318 (2007).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION