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In re Cloyd


August 20, 2010


On appeal from a Final Administrative Decision of the New Jersey Civil Service Commission, Docket No. 2009-1067.

Per curiam.


Argued August 10, 2010

Before Judges Sabatino and Ashrafi.

Appellant Janice Cloyd appeals from a final decision of the Civil Service Commission upholding her termination as an employee of Trenton Psychiatric Hospital. We affirm.

The New Jersey Department of Human Services filed disciplinary charges against Cloyd in February 2008 for conduct unbecoming a public employee under N.J.A.C. 4A:2-2.3a(6), alleging that she violated administrative orders by physically abusing a patient and by making inappropriate physical contact with the patient. After the charges were sustained in a departmental hearing, Cloyd appealed the agency's decision that she be removed from her employment. Her case was heard by an Administrative Law Judge (ALJ) in February 2009.

The ALJ issued a written decision concluding that Cloyd had not abused the patient but that her conduct included inappropriate physical contact. Because of Cloyd's prior history of disciplinary actions, the ALJ recommended that the sanction of termination be affirmed. The Civil Service Commission followed the ALJ's recommendation and affirmed Cloyd's termination by written decision dated April 17, 2009.

The facts developed at the administrative law hearing established that Cloyd was employed as a Human Services Technician (HST) at the Trenton Psychiatric Hospital since 1996. Her duties included patient care on a unit of the hospital with female patients, including T.T., a young patient who had a history of aggressive and angry behavior toward other patients and hospital staff. Hospital policy required that all patients leave their bedrooms in the morning as part of their daily activities and therapy, but staff had difficulty getting T.T. out of bed and out of her bedroom.

On the morning of November 16, 2007, Cloyd was making rounds to get patients out of bed. T.T. was in a bedroom that she shared with other patients. A member of the hospital staff, Tia Johnson, was assigned that morning to be a one-on-one aide for T.T. and was in the bedroom. Johnson told Cloyd that she was having difficulty getting T.T. out of bed. As Cloyd entered the bedroom and told T.T. to get up, T.T. jumped out of her bed, took a fighting stance, and said that she wanted to fight Cloyd and get her fired.

Accounts differ about what happened next, but what occurred outside the bedroom was visually captured on surveillance videotapes of the hospital. According to Cloyd, she was trying to calm T.T. down verbally but T.T. was attacking her and challenging her to a fight. Cloyd claimed that T.T. hung onto her and would not let go. In her statement to hospital staff, T.T. said that Cloyd pulled her out of bed by her leg and pushed her into the dayroom. Cloyd and Johnson, however, denied that Cloyd had pulled T.T. out of bed, and Cloyd claimed that her hands were in contact with T.T. only to protect herself against T.T.'s attempts to strike or push her.

As captured by the surveillance cameras outside the bedroom, which did not include sound recording, the incident included about five seconds of physical contact between T.T. and Cloyd. The ALJ made the following findings about the relevant content of the video evidence:

Camera 1 of the video showed the hallway and T.T.'s bedroom at the end of the hallway on the left side. Camera 2 showed the dayroom. Camera 1 showed T.T. and the appellant exiting the bedroom. Appellant's hands were on T.T. pulling her out of the room toward the dayroom. T.T.'s hands appeared to be on appellant's wrist.

Camera 2 showed HST Johnson watching as the appellant constantly kept her hands on T.T. and pushed her backward. After being pushed into the dayroom, T.T. lunged forward toward the appellant who slightly pushed her away and T.T. tripped over another patient sitting on the couch. The appellant had her hands up defending herself and T.T. looked like she may have taken a swing at her and then ran away. [(Citations to the video exhibit omitted.)]

A Quality Assurance Specialist and a Program Coordinator for the hospital testified about hospital policies and rules concerning treatment of patients. Neither had been present during the incident, and both relied on the videotape and witness statements to conclude that Cloyd had violated administrative orders of the hospital pertaining to treatment of patients. The hospital had a "hands-off" policy, and staff were trained to de-escalate confrontations verbally and to separate themselves from patients who were physically threatening or aggressive or to seek assistance from other hospital staff. Nevertheless, staff were permitted to defend themselves and other patients against physical harm.

The Program Coordinator testified that a team approach to dealing with T.T. had been implemented, including verbally communicating with her and building a trusting relationship to curb her aggression. She testified that Cloyd's putting her hands on T.T. and pushing her to the dayroom was contrary to hospital policy and the team approach to dealing with T.T.'s aggressive behavior.

In his decision, the ALJ concluded that insufficient evidence was produced to prove that Cloyd had physically abused T.T., since the only evidence of alleged physical abuse was T.T.'s hearsay statement that Cloyd had pulled her out of bed by her leg. Ruling that such hearsay by itself is not sufficient to establish the violation, the ALJ concluded that Cloyd had not committed any violation in the bedroom.

Relying on his own observations from the video recording, however, the ALJ concluded that Cloyd "clearly engaged the patient physically even if her intentions were not to cause her harm." He also concluded that:

The actions of the appellant escalated instead of deescalated the situation. She failed to handle the patient appropriately under the circumstances. Therefore, I find that the appellant's actions did constitute inappropriate contact.

The ALJ stated that the inappropriate contact charge alone did not warrant Cloyd's removal from her position. But because she had three prior five-day suspensions and one prior five-month suspension for verbal abuse of a patient, and because she had received training following her longer suspension for proper treatment of difficult patients, it was appropriate for the agency to terminate her employment.

On appeal, Cloyd argues that there was insufficient credible evidence to support her termination, that T.T. should have been called as a witness at the hearing rather than her statement being admitted in evidence, and that the penalty imposed was disproportionate and overly harsh for the alleged violation found by the ALJ.

Courts have a limited role when reviewing administrative decisions. In re Taylor, 158 N.J. 644, 656 (1999). Such administrative determinations are entitled to deference except where the decision is "arbitrary, capricious, or unreasonable or is not supported by substantial credible evidence in the record as a whole." Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); accord Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). The administrative decision must be affirmed if "the findings made could reasonably have been reached on sufficient credible evidence." Taylor, supra, 158 N.J. at 658.

We need not defer to the administrative agency's decision where it is "so wide off the mark as to be manifestly mistaken." Tlumac v. High Bridge Stone, 187 N.J. 567, 573 (2006); see also Fairweather v. Pub. Employees Ret. Sys., 373 N.J. Super. 288, 295 (App. Div. 2004) (no deference due if agency's decision is "manifestly mistaken").

Cloyd argues that the video footage was insufficient evidence because it did not record sound and did not contradict her testimony that she was attempting verbally to de-escalate the situation. She also argues that, by holding her palms up in a defensive posture as shown on the video, she was obviously trying to protect herself against T.T.'s assaultive behavior.

The hospital's hands-off policy includes an emergency exception, allowing staff to "initiate the use of restraint for extreme safety reasons, which constitute imminent danger to staff or patients." Cloyd emphasizes that T.T.'s past aggressive behavior had been documented, she had grown her fingernails to a dangerous length, and she had recently been physically restrained by hospital staff because of her aggression and danger to herself and others.

Contrary to Cloyd's argument, however, the ALJ found that Cloyd was pushing T.T. away from her bedroom and that Cloyd held T.T. physically in an attempt to control her. The descriptions of the video footage indicate that T.T. was moving backward for fifteen feet or more while Cloyd's hands remained on her. This evidence contradicts Cloyd's testimony that T.T. was pushing her and she was merely protecting herself against T.T.'s aggression.

The ALJ also found that, even if Cloyd was attempting to de-escalate the confrontation verbally, her physical actions actually caused the conflict to intensify. The progression of events supports the ALJ's determination that Cloyd's actions exacerbated the confrontation, contrary to hospital policy and the treatment plan for T.T. The ALJ could reasonably conclude from the evidence that Cloyd acted contrary to the self-defense exception in pulling T.T. out of her bedroom and in continuing to push T.T. into the dayroom after T.T. was out and the door to the bedroom was locked by the other staff member, Johnson. Cloyd's self-defense argument was contradicted by the video evidence showing that her conduct surpassed the claimed objective of only defending herself.

Having reviewed the record, we conclude that the ALJ's findings and conclusions are sufficiently supported by the evidence.

Cloyd argues next that T.T. should have been produced as a witness, and any testimony regarding her version of events was hearsay and should not have been admitted. The ALJ correctly applied the rules of evidence applicable to the proceedings and did not, in any event, rely on T.T.'s statement to make any relevant findings adverse to Cloyd.

Under N.J.A.C. 1:1-15.5(a), hearsay evidence may be introduced at an administrative hearing in the judge's discretion, but only when there is "some legally competent evidence . . . to support each ultimate finding of fact to an extent sufficient to provide assurances of reliability and to avoid the fact or appearance of arbitrariness[,]" N.J.A.C. 1:1-15.5(b). See Weston v. State, 60 N.J. 36, 50-51 (1972) (explaining New Jersey procedure regarding the so-called residuum rule). Here, the ALJ allowed a witness to testify about T.T.'s statement pending his review of the video recording to determine if there was corroboration for T.T.'s allegations.

After viewing the video footage and hearing the remainder of the testimony, the ALJ found that T.T.'s statement about what occurred in the bedroom was not corroborated by other evidence, and therefore, he concluded that no violation had been proven in that regard. He relied, instead, on the video footage to reach his own conclusions about the nature of the physical contact of Cloyd with the patient outside the bedroom and whether that contact was inappropriate.

Finally, Cloyd argues that even if her behavior was inappropriate, her termination was a shocking and unfair punishment. Because of Cloyd's prior history of disciplinary infractions and suspensions, principles of progressive discipline supported the agency's decision to terminate her. See In re Herrmann, 192 N.J. 19, 30-32 (2007); Town of W. New York v. Bock, 38 N.J. 500, 523 (1962); In re Hall, 335 N.J. Super. 45, 49 (App. Div. 2000), certif. denied, 167 N.J. 629 (2001); In re Morrison, 216 N.J. Super. 143, 160-61 (App. Div. 1987). The ALJ also noted that Cloyd had received training after her last suspension for verbal abuse of a patient, and she had again violated hospital policy in her manner of treating a patient.

We conclude that the administrative decisions appealed from were supported by sufficient credible evidence and were not arbitrary, capricious, or unreasonable.



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