On appeal from the Final Decision of the New Jersey State Board of Education, Docket No. 2953-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Payne.
Andrew Gall, a tenured teacher at the New Lisbon Developmental Center (NLDC), a home for developmentally disabled adults, appeals from a final administrative decision of the State Board of Education terminating his employment on the ground that he committed an act of abuse against a client, D.K., by reflexively slapping him on the back or on the back of his head after D.K. had unexpectedly punched Gall in the chest near the location of an implanted pacemaker-defibrillator. On appeal, Gall argues that the State Board of Education's decision was arbitrary, unreasonable and not supported by credible evidence in the record. He argues additionally that the penalty of termination was too severe and contrary to principles of progressive discipline. We affirm.
The record in the matter demonstrates that Gall had been employed by the NLDC in various capacities since September 1965, and that he had been tenured as a teacher since 1987. On December 6, 2000, the Department of Human Services promulgated Administrative Order 4:08, Supplement 3, entitled Prohibition Against Abuse. The order provided:
The clients, patients, and residents receiving services provided by this Department are to be treated with respect and dignity. The policy of the Department has been and continues to be that no client, patient or resident will be abused.
In order to clarify and be certain that all employees understand and are aware of what is considered abuse, each appointing authority will assure that all present and future employees receive, as soon as possible, a copy of this supplement and that a record of such be made and retained.
The current footnote 3 of Supplement 1 of Administrative Order 4:08, Disciplinary Action Policies and Procedures is rescinded and the following new footnote 3, which defines physical abuse, is adopted:
Physical abuse is a physical act directed at a client, patient or resident of a type that could tend to cause pain, injury, anguish, and/or suffering. Such acts include but are not limited to the client, patient, or resident being kicked, pinched, bitten, punched, slapped, hit, pushed, dragged, and/or struck with a thrown or held object.
Supplement 1, Table of Offenses and Penalties and Their Application, provides that for a first infraction/incident of physical abuse, an employee is to be removed from employment.
It is essential that we treat each other and our clients, patients and residents with respect and dignity.
Gall acknowledged receipt of the new policy on May 14, 2001.
Additionally, the Division of Developmental Disabilities provided instruction to employees in crisis intervention, behavior management and non-violent restraint techniques pursuant to a program entitled "Handle with Care." Gall had received instruction in Handle with Care procedures, and at the administrative hearing conducted in the matter, he admitted that slapping a client was not part of the program's procedures.
On January 30, 2007, Gall was detailed to a portion of the NLDC known as Ivy Cottage during the noon hour. In a confidential incident statement, given on February 1, 2007, Gall described what occurred at that time, in relevant part, as follows:
I work at E.I. (Esteem Industries).*fn1 I am assigned to Vine Cottage between 12:15 p.m. & 1:00 p.m. On Tues. 1-30-07 while in a Vine classroom, I was struck by an individual, [D.K.], on my chest, just missing my pacemaker-defibrillator. I put my arm up to block his strike but was struck anyway. My first reaction was to slap him on his back. I did not punch him. The shift supervisor (I don't know her name) was standing at the doorway & saw me slap him.
She told me not to do that again. I said I would not do that again.
As acknowledged by Gall, the episode was witnessed by the cottage's training supervisor (CTS), Francillia Jones, who provided the following confidential incident statement on January 30. She stated:
On Tuesday 1-30-07 at approx. 1:00 p.m. staff (Ms. Bush) asked me to help her with [D.K.] who had left [the activities of daily living (ADL) room] during activities for leisure. [D.K.] was in the lobby headed towards the back lounge. I redirected [D.K.] back into [the ADL room, to] which he went without any problem (willingly). [D.K.] went in [the ADL room] first, I entered next & Ms. Bush entered after me.
Upon entering the room I saw staff Mr. Gall sitting in the chair by the yard door. Ms. Bush walked over to that side of the room. [D.K.] suddenly hit Mr. Gall. I counseled [D.K.] by telling him not to hit anyone. I turned to walk out of the room. I then turned back around and witnessed Mr. Gall hit [D.K.] from the back. I said to Mr. Gall why did you hit him. He stated to me "He hit me first." I said to him don't hit him again. . . . I did not see exactly where on the body [D.K.] was hit because [D.K.] was facing me and Mr. Gall was behind [D.K.].
An incident statement was also provided on January 30 by witness Marsha Bush, as follows:
On 1/30/07 I was pulled from Holly to Vine to provide staffing coverage. I had just returned from lunch and another gentleman was covering the room (FAS 207 ADL-room).
After several minutes [D.K.] gets up and walks out of the room. I followed to see if he would come back. I saw the CTS and asked for assistance. CTS was able to talk him back in. The CTS's name is Fran Jones. [D.K.] was passing the main entrance heading to the dorm area when the CTS was able to talk him back. [D.K.] return[ed] back to the ADL room quickly. When we got there I saw the staff standing near the door closest to the back yard. His hand was already raised and then he slapped [D.K.] on the back of the head. When asked by the CTS what was he doing, he replied "He hit me first." CTS told him don't you ever put your hands on the individuals.
On the day of the incident, Gall was placed on non-client contact status pending an investigation of the matter. He was suspended with pay, effective February 23, 2007. Tenure charges were filed against Gall on March 5, 2007, alleging that he had engaged in conduct unbecoming a teaching staff member. On March 13, 2007, the New Jersey Department of Human Services's (DHS) Office of Cooperative Labor Relations informed Gall by letter of its intention to dismiss him. Gall responded to the charges in a letter to the Administrator of the Employee Relations Office, stating:
This communication is in response to the communication from you on March 15, 2007, concerning my striking an ...