On appeal from the Final Administrative Decision of the Merit System Board, Department of Personnel, Docket No. 2008-901.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Lihotz.
Appellant Bettye Griffin-Staples appeals from a final administrative determination of the Merit Systems Board (MSB) removing her from her position as a Youth Worker for the Vineland Residential Treatment Center (Vineland). Appellant challenges the conclusion of the MSB, advancing both procedural and legal arguments, including: the New Jersey Department of Children and Families (DCF) failed to timely file the charges resulting in appellant's discipline; the charges were retaliatory; in making his findings, later accepted by the MSB, the hearing officer erred in making evidential rulings and credibility determinations; appellant's actions were within acceptable techniques; and the MSB's determination was arbitrary and capricious. We have considered the arguments presented in light of the record and the applicable law, and we affirm.
Vineland is a special population facility, housing approximately thirty to thirty-six "at risk" male and female youths, ranging in age from twelve to eighteen, who have been ordered to the facility for treatment as wards of the State. Generally, the residents have behavioral or mental health problems, are runaways, or are probationers.
Appellant commenced her employment as a Youth Worker on June 10, 2006. Her job responsibilities included supervising the residents, acting as a role model, deescalating conflict, handling aggressive behaviors, and crisis management. Appellant was provided training in techniques to address the behaviors of the special population.
Appellant does not dispute she was trained to address any oppositional behaviors exhibited by Vineland's residents and told that staff must attempt to defuse a situation using various techniques other than physical restraint. In the event a staff member believed physical restraint was necessary, he or she must contact a nurse who is on duty for permission. In the event of an emergency, physical restraint may be employed when a child's behavior presents an immediate danger to self or others. Immediately thereafter, a nurse must be contacted to check the resident.
On September 27, 2006, an incident occurred in Unit 4 between appellant and a thirteen year-old Vineland resident, S.B., which resulted in the underlying charges. S.B. was having a bad day and was not able to engage in a visit with her grandmother. Youth Worker Shirley Clark and appellant were in the office located in S.B.'s cottage. Clark was distributing snacks and appellant was providing pseudo-money to the teenagers to buy candy or sundries when S.B. entered the office, sat in a chair, and refused to leave. S.B. held onto the chair and began cursing as she insisted she was not leaving. S.B. then began to rummage through the desk drawers. Appellant telephoned her supervisor, who did not respond.
According to appellant, she and Clark each took one of S.B.'s arms to lead her out of the office and into the dining room. When she and Clark released S.B., the child became verbally abusive and "ran toward appellant whose back was turned." Clark testified she yelled for S.B. to stop, and she complied. On the other hand, appellant stated she turned toward S.B. and raised her crossed arms with clenched fists, a technique she labeled "cross and block," as S.B. rushed toward her. Appellant further stated S.B. lunged at Clark, causing her to fall.
Two other Youth Workers, Monica Collins and Tanieka Pierce, testified as to their observations of the interaction between appellant and S.B. as displayed on a video monitor in their office. Each stated S.B. attempted to enter the office but was blocked by Clark. They watched Clark and appellant "pull" S.B., holding her upper arms, away from the office about fifteen feet toward the dining room. S.B. was compliant. After releasing S.B., Clark returned to the office; S.B. and appellant faced each other, less than one foot apart. Collins and Pierce saw appellant raise her fist to S.B.'s face. To Collins, it appeared as if appellant was arguing with S.B. Neither Collins nor Pierce saw S.B. raise her hands toward appellant. S.B. then moved toward Clark and attempted to enter the office when Clark fell. The written statement of another youth worker was conditionally admitted; the statement was consistent with the facts as testified by Pierce and Collins.
The incident upset S.B. A Vineland nurse, Paula Jean Frie, R.N., examined the resident, who was agitated and complained her ear was hurt. Frie observed S.B.'s left ear was scraped and irritated with a little blood, but was not torn. She was also missing an earring in her left ear. S.B. admitted she caused Clark to fall when she attempted to retrieve laundry detergent from her locker, located in the office.
The incident was investigated by the Public Defender's Office, Division of Youth and Family Services Conflict Investigation Unit (DYFS). DYFS concluded the allegation of abuse was unfounded, N.J.S.A. 9:6-8.11; however, appellant's conduct raised serious concerns. Vineland determined discipline was warranted and, on May 10, 2007, DCF issued a Preliminary Notice of Disciplinary Action, charging appellant with inappropriate contact or mistreatment of a resident, violation of administrative procedures and/or regulations involving safety and security, violation of a rule, regulation, policy, or procedure and conduct unbecoming a public employee. ...