Opinion
DOCKET NO. A-5784-12T3
03-19-2015
IN THE MATTER OF ALEXANDER ZOEDUAH, NEW LISBON DEVELOPMENTAL CENTER, DEPARTMENT OF HUMAN SERVICES.
The Osborne Law Firm, L.L.C., attorneys for appellant (Michael Osborne, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Christopher J. Hamner, Deputy Attorney General, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and O'Connor. On appeal from the Civil Service Commission, Docket No. 2013-818. The Osborne Law Firm, L.L.C., attorneys for appellant (Michael Osborne, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Christopher J. Hamner, Deputy Attorney General, on the brief). PER CURIAM
Petitioner appeals from a final administrative decision of the Civil Service Commission (Commission), which adopted the initial decision of an Administrative Law Judge (ALJ) to terminate him. Petitioner had been employed as a cottage training technician at the New Lisbon Developmental Center (center), a home for developmentally disabled adults. We affirm.
On April 3, 2012, the Department of Human Services (DHS), which operates the center, issued a preliminary notice of disciplinary action charging petitioner with conduct unbecoming a public employee, N.J.A.C. 4A:2-2.3(a)(6), and other sufficient cause, N.J.A.C. 4A:2-2.3(a)(12). Petitioner was further charged with violating the following DHS Administrative Orders: 4.08-C.3, physical or mental abuse of a patient, client, resident or employee; 4.08-C.5, inappropriate physical contact or mistreatment of a patient, client, resident or employee; 4.08-C.8, falsification, intentional misstatement of material fact in connection with work, employment, application, attendance, or in any record, report investigation or other proceeding; 4.08-C.11, any improper conduct which violates common decency; 4.08-D.7, violation of administrative procedures or regulations involving safety and security; and 4.08-E.1, violation of a rule, regulation, policy, procedure, order or any administrative decision.
On April 4, 2012, the DHS issued an amended preliminary notice of disciplinary action that suspended petitioner without pay. After a departmental level hearing held on July 16, 2012, the DHS issued a final notice of disciplinary action sustaining all of the charges except for the administrative charge of falsification under 4.08 C-8. Petitioner was removed from his position effective April 4, 2012.
Petitioner appealed his removal and the matter was transferred to the Office of Administrative Law. Following a hearing, the ALJ found as follows. On March 26, 2012, petitioner was distributing snacks to residents at the center when he became involved in an altercation with one of the residents, J.R. Specifically, the petitioner saw J.R. with a snack he was prohibited from eating under the diet on which he was placed. Petitioner took the snack from J.R., who in turn struck petitioner on the shoulder. Instead of retreating or calling for assistance as he had been trained when confronted with a resident's aberrant or aggressive behavior, petitioner responded by kicking J.R. twice in the stomach. Although petitioner denied kicking or assaulting J.R. in any manner, the ALJ found J.R. the more credible witness.
To protect his privacy, we refer to this resident by his initials.
The court found petitioner engaged in conduct unbecoming a public employee; physically abused a resident; had inappropriate physical contact with or mistreated a resident; engaged in improper conduct that violates common decency; violated administrative procedures or regulations involving safety and security; violated a rule, regulation, policy, procedure, order or administrative decision; and other sufficient cause. Given the severity of petitioner's misconduct, the court determined the appropriate sanction was removal. On May 28, 2013, the ALJ filed his initial decision with the Commission, which in turn adopted the ALJ's findings and conclusions.
On appeal, petitioner contends the decision of the Commission was not supported by sufficient, competent and credible evidence and that progressive discipline, not removal, was the appropriate penalty.
"In light of the executive function of administrative agencies, judicial capacity to review administrative actions is severely limited." In re Musick, 143 N.J. 206, 216 (1996) (citing Gloucester Cnty. Welfare Bd. v. N.J. Civil Serv. Comm'n, 93 N.J. 384, 390 (1993)). "[A]n appellate court ordinarily should not disturb an administrative agency's determinations or findings unless there is a clear showing that (1) the agency did not follow the law; (2) the decision was arbitrary, capricious, or unreasonable; or (3) the decision was not supported by substantial evidence." In re Virtua-West Jersey Hosp. Voorhees for a Certificate of Need, 194 N.J. 413, 422 (2008) (citing In re Herrmann, 192 N.J. 19, 28 (2007)). "In reviewing factual determinations made by an administrative agency we will not intervene if the findings could reasonably have been reached on sufficient credible evidence present in the record, giving due regard to the opportunity of the one who heard the witnesses to judge their credibility." Renan Realty Corp. v. State, Dep't of Cmty. Affairs, Bureau of Hous. Inspection, 182 N.J. Super. 415, 419 (App. Div. 1981).
The same deferential standard applies to the review of disciplinary sanctions. In re Herrmann, 192 N.J. 19, 28 (2007) (citing Knoble v. Waterfront Comm'n of N.Y. Harbor, 67 N.J. 427, 431-32 (1975). In light of this deference, when reviewing administrative sanctions, "the test . . . is 'whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.'" Id. at 28-29 (quoting In re Polk, 90 N.J. 550, 578 (1982)). Moreover, an administrative agency need not resort to progressive discipline when an employee has engaged in severe misconduct, "especially when the employee's position involves public safety and the misconduct causes risk of harm to persons or property." Id. at 33.
We have carefully reviewed the record and petitioner's arguments, and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). According deference, as we must, to the ALJ's credibility determinations, there is sufficient evidence in the record to support the ALJ's findings and conclusions, which the Commission, in turn, adopted. Further, given the unwarranted physical attack upon a person with disabilities, the penalty was not so wide of the mark as to justify our substitution of the Commission's judgment.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION