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In re Pinckney

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 12, 2010

IN THE MATTER OF YVONNE PINCKNEY, DEPARTMENT OF THE TREASURY.

On appeal from a Final Decision of the Civil Service Commission, Docket No. 2008-453.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 20, 2010

Before Judges Fuentes and Gilroy.

Appellant Yvonne Pinckney was employed as a Technical Assistant 2 in the Department of the Treasury, Lottery Division. She was promoted to Technical Assistant 1 on a probationary basis to evaluate her performance in this new position. Her direct supervisor found her performance "unsatisfactory," which resulted in her return to her previous position.

Pinckney now appeals from the final decision of the Civil Service Commission upholding her return to the position of Technical Assistant 2. We affirm.

Pinckney began working in the Department of the Treasury, Lottery Division in 1985. In September 2002, she was promoted from the position of Principal Clerk Typist to Technical Assistant 2 in the Lottery Validations Unit. Effective March 2005, she was provisionally promoted to the position of Technical Assistant 1, subject to her passing a written examination. After passing the examination, Pickney was permanently appointed to the position on December 25, 2006, subject only to a satisfactory completion of a provisional working test period. The probationary period is designed to last for four months.

In her capacity as Technical Assistant 1, Pinckney was responsible for supervising the Validations Unit, which processes claims for lottery prizes. In the first two months of the provisional period she received an "unsatisfactory" rating from her supervisor. At the end of the four-month provisional period, Pinckney received a "satisfactory" rating; thereafter, her provisional period was extended by two months to permit her to continue to improve her performance. Despite some preliminary signs of improvement, her supervisor considered her overall performance for the entire test period unsatisfactory. As a result, at the end of the additional two-month period, Pinckney was returned to her previous position of Technical Assistant 2.

Pinckney filed an administrative appeal challenging this decision. The case was transferred to the Office of Administrative Law where Pinckney and her supervisor both testified concerning her performance as a Technical Assistant 1. At the end of a one-day hearing, the Administrative Law Judge (ALJ) issued an Initial Decision recommending that Pinckney receive a new provisional period for the position of Technical Assistant 1.

The ALJ found Pinckney's testimony explaining or refuting the criticisms of her performance more credible and persuasive than the contrary testimony of her supervisor. Specifically, the ALJ accepted Pinckney's testimony that her unsatisfactory performance was due, in large part, to staffing shortages in her department and to the excessive micromanagement style of her supervisor.

On review, the Civil Service Commission rejected the ALJ's factual findings and ultimate recommendation. The Commission carefully reviewed the record of the hearing and found sufficient evidence and inconsistencies in Pinckney's testimony to dispute and overturn the ALJ's factual findings. The Commission rejected the ALJ's conclusion that the provisional period, including the two-month extension, was conducted in bad faith.

Appellant now argues that the Commission usurped the ALJ's role as factfinder without affording his factual findings the deference they are entitled to based on the ALJ's ability to gauge a witness's demeanor and overall body language while testifying. We disagree.

Our review of a final decision of a State administrative agency requires us to determine whether the decision is supported by sufficient competent evidence in the record. We will not disturb such a decision unless it is arbitrary, capricious, or unreasonable. In re Herrmann, 192 N.J. 19, 27 (2007).

Here, the Commission has explicit statutory authority to reject the factual findings and conclusions of law made by the ALJ.

In reviewing the decision of an administrative law judge, the agency head may reject or modify findings of fact, conclusions of law or interpretations of agency policy in the decision, but shall state clearly the reasons for doing so. 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. In rejecting or modifying any findings of fact, the agency head shall state with particularity the reasons for rejecting the findings and shall make new or modified findings supported by sufficient, competent, and credible evidence in the record. Unless the head of the agency modifies or rejects the report within such period, the decision of the administrative law judge shall be deemed adopted as the final decision of the head of the agency.

The recommended report and decision shall be a part of the record in the case. For good cause shown, upon certification by the director and the agency head, the time limits established herein may be subject to extension. [N.J.S.A. 52:14B-10(c).]

We discern no legal basis for interfering with or otherwise overturning the Commission's findings and conclusions of law and therefore affirm substantially for the reasons expressed by the Commission in its final decision dated September 11, 2008. Cavalieri v. Bd. of Trs. of the Pub. Employees Ret. Sys., 368 N.J. Super. 527, 537 (App. Div. 2004).

Affirmed.

20100812

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