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In re Thompson


September 28, 2007


On appeal from the Final Administrative Action of the Merit System Board, DOP Docket No. 2004-1663, OAL Docket No. CSV 330-04.

Per curiam.


March 13, 2007

Argued February 28, 2007

Remanded Re-Argued September 17, 2007

Before Judges S.L. Reisner and Baxter.

Omar Thompson appeals from a final administrative decision of the Merit System Board (Board) removing him from his position as Medical Security Officer at Anne Klein Forensic Psychiatric Hospital (FPH), which is operated by the Department of Human Services (Department). In its November 4, 2005 decision, the Board reversed the June 14, 2005 decision of the Administrative Law Judge (ALJ). The ALJ found that the Department failed to demonstrate by a preponderance of the competent, credible evidence that Thompson had physically abused T.G., a female patient. Thompson urges us to reverse the Board's decision, arguing that the Board failed to observe the proper standard of review when it rejected the ALJ's findings. We agree with Thompson's contentions, and reverse.


Josephine Walters testified that on Friday, November 16, 2001, she thought she saw Thompson with his hand between T.G.'s legs, but she was unsure and said nothing to Thompson, nor did she report her suspicions to her supervisor. The next time Walters worked with Thompson was five days later on November 21, 2001. While Walters was on the unit observing the patients who were on a smoke break, she came around the corner and saw Thompson quickly remove his hand from between T.G.'s legs. Walters ordered T.G. to go into the courtyard with the other patients, and never questioned T.G. about Thompson's conduct. Although Walters was required by written institutional procedures at FPH to report patient abuse to a supervisor immediately, Walters did not report Thompson's conduct to her supervisor at that time. She explained that before reporting what she had seen, she wanted to discuss the matter with Thompson first. When asked why she did not speak to Thompson in the four hours that remained of the shift on November 21, she explained that she was busy taking care of patients and had no time to do so. During that four-hour interval, Walters accompanied patients to rehab and to the library, then returned to the unit where Thompson worked and remained there for two hours before the shift ended, without ever speaking to Thompson about what she had observed. The next day was Thanksgiving and Walters did not work again until Saturday, November 24, 2001, and it was not until then that she reported Thompson's conduct to her supervisor.

On November 24, 2001, Walters reported to her supervisor Marion Watkins that on November 21, 2001, at approximately 5:45 p.m., she had observed Thompson having inappropriate physical contact with T.G. Walters reported to Watkins that she had observed Thompson removing his hand from between T.G.'s legs as he stood behind her. Watkins prepared a written report the next day describing what Walters had told him about the November 21 incident, and Watkins forwarded his written report to the Director of Medical Security.

Notably, nothing in Watkins's written report refers to what Walters thought she had observed on November 16, 2001. Watkins explained that although he remembered Walters telling him about the November 16 incident, he failed to include it in his written report, and conceded in his testimony that he was required to have done so. He commented, "I have to apologize for my behavior, because I did not include that particular allegation in that report."

On the same day that Walters reported the November 21 incident to Watkins, Walters prepared a handwritten report which she also provided to him. Her sixty-one word report briefly describes what she observed between Thompson and T.G. on November 21, 2001, but fails to mention anything about what she thought she saw on November 16, 2001.

When asked at the hearing before the ALJ whether there was any doubt in her mind as to what she had seen on November 21, 2001, although several years*fn1 has passed between the incident and her testimony, she answered "no, there is not." In contrast, she explained that she was unsure about what she had seen on November 16, 2001, and that was why she failed to include that incident in her written statement on November 24, 2001.

The final witness to testify on behalf of the Department was Judith Priest, the Clinical Administrator of the FPH on November 21, 2001. Priest was responsible for the clinical care of all patients and the supervision of all staff, including medical security officers such as Walters and Thompson. Priest produced a copy of the written institutional procedure that requires an employee who observes another employee engaging in improper conduct or patient abuse to report such conduct immediately. Priest added that she would not penalize an employee for reporting abuse a day later. After presenting the testimony of Walters, Watkins and Priest, the Department rested.

Thompson testified himself and called two witnesses, Samuel Turner and Sandra Hereford. Samuel Turner worked in the recreation unit during the evening shift on November 21, 2001, with Walters, which was the evening of the day that Walters claimed to have observed Thompson with his hand between T.G.'s legs. During the one and one-half hours that Turner worked with Walters that night, she said nothing to him about Thompson's conduct with T.G. earlier that day. When Turner learned a few days later that Walters had made an accusation about Thompson, Turner was surprised that she had not mentioned the incident to him because the two had a "good relationship." Turner also testified that Walters did not "seem upset at all or bothered that night." On the other hand, Turner also acknowledged that he was not her supervisor and Walters did not have a responsibility to discuss with him what she had observed.

Sandra Hereford was a Senior Medical Security Officer responsible for preparing incident reports for internal investigations into alleged patient abuse by staff members. Hereford described T.G. as "one of our problematic patients from the time she came here." Hereford also characterized Walters's relationship with T.G. as too close because T.G. called Walters "mom." On cross-examination, Hereford acknowledged that she had been disciplined at FPH "quite a number of times."

In his testimony, Thompson denied having any improper contact with T.G. that afternoon, sexual or otherwise, but could think of no reason why Walters would falsely accuse him. He explained that many of the staff who worked on the unit were aware that T.G. had a habit of grabbing staff by the hands, and the word on T.G. was "watch for T. And don't let her get you in trouble." Thompson insisted that he had done nothing wrong involving T.G. He acknowledged that during his prior employment at Trenton Psychiatric Hospital, he had been disciplined for falsification of records when he arrived late for work but failed to mark his timesheet accordingly. Ultimately, the ALJ determined that the prior suspension imposed on Thompson was irrelevant to the determination of whether Thompson had engaged in this conduct on November 21, 2001, and the ALJ declined to consider that evidence.

On June 14, 2005, ALJ Anthony T. Bruno issued a written decision reversing the Departmental decision that removed Thompson from his position as Senior Medical Security Officer. ALJ Bruno concluded that the Department had "not proven by a preponderance of the competent, credible evidence in the hearing record that [Thompson] physically abused a patient. . . ." In particular, the ALJ reasoned:

A serious flaw in the case presented on behalf of the appointing authority is the breakdown of the initial investigation and the failure to obtain and retain comprehensive reports from Walters, Thompson, Watkins and every other competent witness at the hearing. Where Walters stood during the smoke break is critical to the resolution of this matter. Everyone agrees Thompson was standing in the doorway-where one of the Sr. M.S.O. was supposed to be. Was Walters in the Courtyard where Watkins thought the second Sr. M.S.O. was to be, and where Thompson testified Walters stood? Or, was Walters inside the Unit and able to walk toward the doorway without being noticed by Thompson to see T.G. standing at the doorway and Thompson touching T.G.'s inner thighs? Walters's 3-day delay in reporting Thompson's behavior does [sic] make good sense. I find lame Walter's excuse that she wanted to first speak to Thompson because the reasoning ignores the gravity of sexual misconduct and patient abuse. Walters had to know that erotic touching of the patients at the hospital could not be condoned. Yet Walters testified that she first intended to speak to Thompson, and only after not seeing Thompson for 3 days, Walters changed her mind. I find Walter's explanation too extraordinary to be credible.

On November 4, 2005, the Board rejected the findings of fact and conclusions contained in the ALJ's decision. The Board voted to uphold Thompson's removal. In its decision, the Board took the position that it was entitled to conduct a "de novo review of the record." After conducting that de novo review, the Board "disagree[d] with the ALJ's assessment of Walters and finds her credible." The Board did, however, "acknowledge[] that the ALJ, who has the benefit of hearing and seeing the witnesses is generally in a better position to determine the credibility and veracity of the witnesses." The Board noted that in its de novo review of the record, it has the authority to reverse or modify an ALJ's decision if that decision is not supported by the credible evidence in the record. The Board correctly cited N.J.S.A. 52:14B-10(c) which sets forth the standard for overturning an ALJ's credibility determination. The statute provides:

The agency head 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).]

Applying that statutory standard, the Board concluded that the ALJ's credibility determination was not supported by the credible evidence in the record, and the Board rejected the ALJ's credibility findings as "unreasonable." The Board found Walters's testimony credible, Thompson's testimony not credible and concluded that the charge of physical abuse of a patient had been sustained. In its decision, the Board explained its reasons for rejecting the ALJ's conclusion that Walters was not credible:

In finding these facts, the Board reverses the ALJ's credibility findings and determines that Walters was a credible witness. In this regard, there is not a scintilla of evidence that demonstrates that Walters fabricated the allegation against the appellant. On the contrary, the appellant testified at OAL that he had a good working relationship with Walters and could not think of any reason why she would be lying. As to the delay, the Board emphasizes that Walters should have reported the incident immediately and should not have waited three days. Nevertheless, this fact alone does not affect her credibility. Walters explained that she wanted to wait and speak with [Thompson] first. Additionally, Walters saw a similar incident with [Thompson] and T.G. on November 16, 2001, at which time, she was not certain as to what she saw. Walters' uncertainty with respect to the prior incident, however, does not diminish her certainty as to what occurred on November 21, 2001. Rather, her desire to be sure of what she saw, before reporting the conduct, enhances her credibility with regard to the November 21, 2001 incident. Similarly, while the Board recognizes that there were minor inconsistencies in Walters' testimony, such as the number of times she worked with [Thompson], the fact remains that she saw [his] hand come out from in between T.G.'s legs. Such inconsistencies are inconsequential. Walters testified that despite the fact that years passed since the incident, she had no doubt in her mind as to what she saw on November 2, 2001. Finally, the Board finds [Thompson's] testimony self-serving and notes that his prior discipline of falsification casts a shadow on his credibility. Therefore, the Board finds that the ALJ's credibility determination in this matter was not supported by the credible evidence in the record. As such, the Board rejects the ALJ's credibility findings as unreasonable and finds Walter's testimony credible and [Thompson's] not credible.

As to the penalty, the Board approved the appointing authority's termination of Thompson's employment and removal from his position. Thompson then appealed.


"An appellate court's review of an administrative agency's findings of fact is limited to a determination of whether those findings are supported by 'sufficient credible evidence in the record.'" In re Lalama, 343 N.J. Super. 560, 564-65 (App. Div. 2001) (quoting In re Taylor, 158 N.J. 644, 657 (1999)). However, "an appellate court's review . . . is 'not simply a pro forma exercise in which [the court] rubber stamp[s] findings that are not reasonably supported by the evidence.'" Id. at 565 (quoting Chou v. Rutgers, 283 N.J. Super. 524, 539 (App. Div. 1995), certif. denied, 145 N.J. 374 (1996)). "Appellate courts must engage in a 'careful and principled consideration of the agency record and findings.'" Ibid. (quoting Mayflower Sec. Co. v. Bureau of Sec. 64 N.J. 85, 93 (1973)).

Further, "[i]n a case where an administrative agency's findings of fact are contrary to the findings of the ALJ who heard the case, there is a particularly strong need for careful appellate review." Gonzalez v. State Operated School Dist. of City of Newark, 345 N.J. Super. 175, 184 (App. Div. 2001) (quoting Lalama, supra, 343 N.J. Super. at 565). Indeed, in that situation, "if an agency's fact finding is based on the credibility of witnesses, 'a reviewing court need give no deference to the agency . . . on the credibility issue.'" Lalama, supra, 343 N.J. Super. at 565 (quoting Clowes v. Terminix Int'l., Inc., 109 N.J. 575, 587-88 (1988)).

A 2001 amendment to the Administrative Procedure Act, N.J.S.A. 52:14B-1 to -15, severely circumscribed the ability of an agency to reverse an ALJ's factual findings. The agency may not "reject [an ALJ's] . . . findings of fact, [or] conclusions of law [without] stat[ing] clearly the reasons for doing so." N.J.S.A. 52:14B-10(c). The statute further provides that an agency may not reject the factual findings of an ALJ based upon the credibility of lay witness testimony without demonstrating that the ALJ's findings were "arbitrary, capricious or unreasonable or . . . not supported by sufficient, competent, and credible evidence in the record." Ibid.

As we observed in Cavalieri v. Bd. of Trs., 368 N.J. Super. 527, 534 (App. Div. 2004), the Board "was not at liberty to simply substitute its judgment for that of the ALJ's." When an ALJ has made factual findings by evaluating the credibility of lay witnesses, N.J.S.A. 52:14B-10(c) prevents the Board from "sift[ing] through the record anew to make its own decision . . . ." Ibid. Here, the Board explained why the ALJ's decision was not supported by sufficient credible evidence and was unreasonable. We nonetheless conclude that although the Board relied on the language of the statute to reject the ALJ's decision as "unreasonable," in reality the Board "sift[ed] through the record anew to make its own decision." Ibid. That approach is prohibited by the statute. Ibid. When the testimony of lay witnesses before an ALJ "can support more than one factual finding, it is the ALJ's credibility findings that control, unless they are arbitrary or not based on sufficient credible evidence in the record as a whole." Id. at 537.

Indeed, "the controlling choice is no longer the agency head's." Ibid.

Here, the ALJ had the opportunity to hear the testimony of Walters, observe her demeanor and evaluate her credibility, which the Board was not able to do. Moreover, during Walters's testimony, she and another person demonstrated the distances involved, the direction in which the door on the unit was opened, where Thompson was standing and where T.G. was positioned. After observing that demonstration, the ALJ himself asked an additional question of Walters. Unlike the ALJ, the Board had no opportunity to observe and evaluate that demonstration of the physical layout of the FPH hallway.

The ALJ, after evaluating Walters's credibility and observing the demonstration, determined that Walters's excuse for waiting three days to report Thompson's conduct was "lame" because her explanation "ignores the gravity of sexual misconduct and patient abuse." The ALJ's conclusion is bolstered by Walters's own comment in the written report that she provided to Watkins, in which she commented "I became very upset because this definitely [is] wrong and I don't like being put in a position like this." At the hearing before the ALJ, Walters again expressed how much Thompson's conduct had distressed her. Referring to Thompson, she stated "this is not what you were trained to do. This is not what part of your job is. Your job is to help and protect the patients, not harm them." In light of Walters's expressed indignation at Thompson's conduct, both in her written statement and in her testimony before the ALJ; the gravity of sexual abuse of a patient; and the existence of FPH's written policies requiring an employee to immediately report patient abuse, the ALJ reasonably rejected Walters's excuse for waiting three days as lacking in credibility.

The Board rejected the ALJ's determination that the three-day delay in reporting the incident adversely affected Walters's credibility; however, the Board was not free to do so unless the ALJ's conclusion was unreasonable. The Board was not entitled to simply make its own determination about the three-day delay and its impact on Walters's credibility. Nothing in the ALJ's reasoning on that subject strikes us as unreasonable. If anything, it is the Board's conclusion that the three-day delay does not affect Walters's credibility that strikes us as unreasonable.

The Board provided a second reason for rejecting the ALJ's credibility determination when it pointed to Walters's decision not to report the November 16 incident because she was not sure what she had seen. That, in the Board's opinion, bolstered her credibility when she reported the November 21 incident. The ALJ did not use Walters's failure to include the November 16 incident in her written report to Watkins as a basis for rejecting her credibility. Therefore, the Board was not entitled to rely upon Walters's failure to report the November 16 incident as evidence of the ALJ's opinion being "unreasonable." The Board's reliance on facts not relied upon by the ALJ constitutes an impermissible "sift[ing] through the record anew to make its own decision" that is forbidden by Cavalieri. Id. at 534.

The Board's third and final reason for rejecting the ALJ's decision was its determination that Thompson's testimony was "self-serving" and that Thompson had previously been disciplined for falsification of records which, the Board maintained, "casts a shadow on his credibility." The Board's reasoning on this third point was flawed for two reasons. First, to characterize Thompson's testimony as "self-serving" is grossly unfair. The Board apparently assumes that any time an accused individual denies the charges against him, his testimony should be disregarded as self-serving. That assumption defies all logic and human experience. Consequently, we reject the Board's determination that because Thompson denied the charges, his testimony was self-serving and not worthy of belief. Second, the Board was prohibited from relying on Thompson's prior discipline for falsification of records because the ALJ had determined that such evidence should be excluded. The Board was bound by the record of the proceedings before the ALJ, and once the ALJ excluded that evidence, it should not have entered into the Board's final decision. Moreover, we agree with the ALJ's determination that Thompson's prior discipline for falsification of records was irrelevant here.

We therefore conclude that where, as here, the record can support more than one factual finding, it is the ALJ's credibility findings that control, unless they are arbitrary or based on insufficient credible evidence in the record as a whole. Id. at 537. Although the Board characterized the ALJ's credibility determination as unreasonable, that characterization is not supported by the evidence in the record. We conclude that it is the Board's reasoning that is flawed, not the ALJ's.

Reversed. The decision of the ALJ is reinstated.

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