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Hood v. Ryan

April 24, 2008

CARMELLA J. HOOD, AMANDA BECKETT, DAMEON EDWARDS, WILLIAM E. LEWIS, JR., RICHARD JAMES, CASSANDRA CISSE, JULIO MONTANEZ AND RHODERICK LOVE, PLAINTIFFS-APPELLANTS,
v.
KEVIN RYAN, INDIVIDUALLY, AND IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF HUMAN SERVICES, NEW JERSEY DEPARTMENT OF HUMAN SERVICES, ANCORA PSYCHIATRIC HOSPITAL, AND LATANYA WOOD EL, INDIVIDUALLY AND IN HER OFFICIAL CAPACITY AS EXECUTIVE DIRECTOR AND C.E.O. OF ANCORA PSYCHIATRIC HOSPITAL, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-5304-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: November 28, 2007

Before Judges Axelrad and Messano.

Following pre-termination and formal departmental hearings, Ancora Psychiatric Hospital (Ancora), a State psychiatric hospital under the control of the Department of Human Services (DHS), suspended without pay eight employees after criminal background checks revealed charges or convictions for criminal offenses. Each employee was suspended pending the outcome of his or her criminal matter. Upon providing Ancora with documentation demonstrating the criminal charges were dismissed or the employee proved rehabilitation following the conviction, the suspensions were lifted and seven plaintiffs were reinstated, all but one with back pay. One plaintiff has not been reinstated as his criminal charges have not been adjudicated. None of the plaintiffs filed administrative appeals of his or her suspension. Instead, plaintiffs filed suit in the Superior Court against Kevin Ryan, individually and in his official capacity as Commissioner of Human Services, New Jersey Department of Human Services; Ancora; and Latanya Wood El, individually and in her official capacity as Executive Director and CEO of Ancora. Plaintiffs contended Ancora improperly interpreted and applied the "Criminal History Background Check Law" (CHBCL), N.J.S.A. 30:4-3.4 to - 3.10, also called the "Codey Bill,"*fn1 and Section 13 of the Civil Service Act (CSA), N.J.S.A. 11A:2-13, in conducting criminal history record checks on employees who did not provide their express written consent and in suspending employees without pay pending the outcome of their criminal charges. Plaintiffs sought temporary and permanent injunctions, declaratory relief, and damages for violations of their civil rights under 42 U.S.C.A. § 1983. The Law Division judge transferred the first two counts of plaintiffs' complaint to the Appellate Division and retained the § 1983 count. We dismiss Counts I and II of plaintiffs' complaint with prejudice for failure to exhaust administrative remedies.

I.

We recite the specific facts pertaining to each plaintiff:

Carmella Hood

Hood was hired as a licensed practical nurse in November 2005. On June 5, 2006, Hood was arrested and charged with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), specifically, abandoning her nine-year-old daughter at a supermarket and driving home to teach the child a lesson when she refused to leave the store. Upon learning of the arrest, Ancora served Hood with a Preliminary Notice of Disciplinary Action dated June 9, 2006, pursuant to N.J.A.C. 4A:2-2.5, suspending her with pay pending a pre-termination hearing. Three days later, that hearing was held, during which Hood had union representation, and after reviewing the complaint, the hearing officer converted Hood's suspension to a suspension without pay pending the outcome of the formal administrative hearing. He found Hood's immediate suspension was necessary and in accordance with N.J.A.C. 4A:2-2.5.

Hood appeared at the formal departmental hearing on June 20, 2006 with union representation. Jill Thaon, Ancora's Employee Relations Coordinator, stated that due to the nature of the charge, management had no discretion in the matter in that the charges fell under N.J.S.A. 30:4-3.5*fn2 ; therefore, in the best interests of Ancora, Hood should be placed on indefinite suspension pending adjudication of the criminal charge. Hood's union representative stated he was aware, because of the nature of the charge, that Hood had to remain suspended until disposition of the criminal matter.*fn3 Hearing Officer Cheron Quashie-Rosado found that, due to the nature of the charge, which fell under N.J.S.A. 30:4-3.5 and had not been adjudicated in a court of law, it was in Ancora's best interest to suspend Hood without pay pending disposition of the charge. Hood did not appeal her suspension to the Merit System Board (Board).

Hood presented documentation to Ancora indicating the criminal charge against her was dismissed on the municipal court trial date of October 11, 2006. She was reinstated on October 17, 2006, and received back pay for the entire period of her suspension.

Amanda Beckett

Beckett was hired as a licensed practical nurse on September 19, 2005. On February 23, 2006, Beckett was charged with third-degree making terroristic threats, N.J.S.A. 2C:12-3(b), and the petty disorderly offense of harassment, N.J.S.A. 2C:33-4(b) and (c), specifically, "threatening to kill [E.M., a neighbor] to 'fin[]ally' shut her up." Upon learning of the criminal charges, Ancora served Beckett with a Preliminary Notice of Disciplinary Action dated March 3, 2006, pursuant to N.J.A.C. 4A:2-2.5, suspending her with pay pending a pre-termination hearing. Three days later, that hearing was held, during which Beckett had union representation, and after reviewing the complaint, the hearing officer converted Beckett's suspension to a suspension without pay pending the outcome of the formal administrative hearing. He found Beckett's immediate suspension was necessary and in accordance with N.J.A.C. 4A:2-2.5.

Beckett appeared at the formal departmental hearing on March 28, 2006 with union representation. Mona Fredlund, Ancora's representative, stated that due to the nature of the charges, management had no discretion in the manner in that the charges fell under N.J.S.A. 30:4-3.5; therefore, in the best interests of Ancora, Beckett should be placed on indefinite suspension pending their adjudication. Beckett's union representative argued she had not been convicted and N.J.S.A. 30:4-3.5 refers to "conviction[s]," and it was unconstitutional to suspend her without having proven guilt. He further stated Beckett had no prior problem with her employment at Ancora and did not pose a danger to the hospital. Hearing Officer Christine Del Rossi found that, due to the nature of the charges, which fell under N.J.S.A. 30:4-3.5 and had not been adjudicated in a court of law, it was in Ancora's best interest to suspend Beckett without pay pending disposition of the charges. Beckett did not appeal her suspension to the Board.

Beckett presented documentation to Ancora indicating the criminal charges had been dismissed administratively and by the municipal court on June 5, 2006. Beckett returned to work the same day and received back pay for the entire period of her suspension.

Dameon Edwards

Edwards was hired as a food preparer in June l999 and promoted to a cook. On April 8, 2006, Edwards was arrested and charged with fourth-degree possession of marijuana/hashish, N.J.S.A. 2C:35-10(a)(3); third-degree distribution of marijuana/hashish, N.J.S.A. 2C:35-5(b)(11); and third-degree possession of a controlled dangerous substance on school property, N.J.S.A. 2C:35-7. Upon learning of the criminal charges, Ancora served Edwards with a Preliminary Notice of Disciplinary Action dated May 30, 2006, pursuant to N.J.A.C. 4A:2-2.5, suspending him with pay pending a pre-termination hearing. The next day that hearing was held, during which Edwards had union representation. Referencing N.J.S.A. 30:4-3.5 and the nature of the criminal charges, Thaon argued that Edwards' immediate suspension was necessary due to safety implications. Edwards' union representative argued that under the statute, the employee could submit rehabilitative evidence to the Commissioner of Human Services within thirty days, and during that time the suspension should be with pay. The hearing officer converted Edwards' suspension to a suspension without pay pending the outcome of the formal administrative hearing. He found Edwards' immediate suspension was necessary and in accordance with N.J.A.C. 4A:2-2.5.

The formal departmental hearing was scheduled for June 20, 2006 at 10:00 a.m. At 7:30 a.m. that day Edwards purportedly left a voice mail message that he could not attend due to child care issues and requested a postponement. The hearing was held that day, and Edwards' union representative did not appear. Thaon stated that due to the nature of the charges, management had no discretion in the manner in that the charges fell under N.J.S.A. 30:4-3.5; therefore, in the best interests of Ancora, Edwards should be placed on indefinite suspension pending their adjudication. Hearing Officer Quashie-Rosado found that, due to the nature of the charges, which fell under N.J.S.A. 30:4-3.5 and had not been adjudicated in a court of law, it was in Ancora's best interest to suspend Edwards without pay pending disposition of the charges. Edwards remains on suspension because the criminal charges against him are still pending. Edwards did not appeal his suspension to the Board.

William E. Lewis, Jr.

Lewis was hired as a human services assistant in November l999. On March 13, 2005, Lewis was arrested and charged with third-degree making terroristic threats, N.J.S.A. 2C:12-3(b), and the disorderly persons offense of simple assault, N.J.S.A. 2C:12-1(a)(1), specifically, "grabbing [D.P., his ex-wife] by the throat, pushing her face onto a piece of furniture . . . and telling her that [he] would kill her if she reported this incident to the police." Upon learning of the arrest, Ancora served Lewis with a Preliminary Notice of Disciplinary Action dated April 1, 2005, pursuant to N.J.A.C. 4A:2-2.5, suspending him with pay pending a pre-termination hearing. On April 4, 2005, that hearing was held, during which Lewis had union representation, and after reviewing the complaint, the hearing officer converted Lewis' suspension to a suspension without pay pending the outcome of the formal administrative hearing. He found Lewis' immediate suspension was necessary due to safety implications and in accordance with N.J.A.C. 4A:2-2.5.

Lewis appeared at the formal departmental hearing on May l2, 2005 with union representation. Terry O'Lone, Ancora's Human Resources Acting Manager, stated that due to the nature of the charges, management had no discretion in the manner in that the charges fell under N.J.S.A. 30:4-3.5; therefore, in the best interests of Ancora, Lewis should be placed on indefinite suspension pending their adjudication. Lewis' union representative stated Lewis understood the nature of the matter, would work on getting the matter cleared in court and understood he would remain suspended until that time. Hearing Officer Edmund Dillon found that, due to the nature of the charges, which fell under N.J.S.A. 30:4-3.5 and had not been adjudicated in a court of law, it was in Ancora's best interest to suspend Lewis without pay pending disposition of the charges. Lewis did not appeal his suspension to the Board.

Lewis presented documentation to Ancora indicating the criminal charges against him were dismissed in municipal court on July 11, 2005. He was reinstated on July 19, 2005, and received back pay for the entire period of his suspension.

Richard James

James was hired as a recreation therapist in l984 and later promoted to human services technician. On or about November 23, 2004, Ancora received information indicating that, during the period from July 1968 through June l974, James was arrested and charged on eight separate occasions with various criminal offenses in New York City. The charges included first and second-degree assault, felony possession of a weapon, felony reckless endangerment, "menacing order of protection," possession of a weapon, and assault. On March 8, 2005, Ancora notified James he was being suspended without pay due to the nature of these charges, and he was required to submit documentation as to their disposition, which was unavailable to his employer. On March 11, 2005, James submitted documentation to Ancora that all of the criminal charges against him had been dismissed. James was permitted to return to work on that date, and received back pay for the entire period of his suspension.

Cassandra Cisse

Cisse was hired as a human services assistant in l995 and later promoted to human services technician. On August 20, 2001, Cisse pled guilty in municipal court to simple assault, N.J.S.A. 2C:12-1(a)(1), in connection with a domestic violence incident. Upon learning of this conviction, Ancora served Cisse with a Preliminary Notice of Disciplinary Action dated March 27, 2006, pursuant to N.J.A.C. 4A:2-2.5, suspending her with pay pending a pre-termination hearing. The next day that hearing was held, during which Cisse had union representation, who argued that in pleading guilty, Cisse did not understand the possible effects related to her employment. O'Lone stated that based on the nature of the charge, Cisse's immediate suspension was necessary due to safety implications. Hearing officer Dillon ...


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