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In re Glosson


November 17, 2010


On appeal from the New Jersey Civil Service Commission, Docket Nos. 2009-840 and 2009-1801.

Per curiam.


Submitted October 25, 2010

Before Judges Lisa and Reisner.

Appellants, Jeffrey Glosson (Jeffrey) and his son, Christopher Glosson (Christopher), were employed as human services assistants at Ancora Psychiatric Hospital. They appeal from the June 25, 2009 final decision of the Civil Service Commission (Commission). That decision adopted the May 20, 2009 initial decision of an administrative law judge (ALJ), which upheld the actions of the Department of Human Services (DHS) ordering appellants removed from their positions at Ancora based upon charges of patient abuse and other infractions. For the reasons that follow, we affirm.

On February 28, 2008, both appellants were working the night shift, beginning at 11:30 p.m. Although both were working in the same hall that night, they were assigned to different floors. A patient on Christopher's floor, M.R., did not want to sleep and did not want to go into his room. M.R. had a history of unpredictable behavior. Accordingly, Christopher and another staff member were assigned to a two-on-one observation of M.R. They conducted this activity in the hallway, where M.R. was sitting.

Without dispute, the policies and regulations in effect at Ancora did not require patients to sleep at night. Patients were allowed to have their liberty at night in such situations, subject to appropriate observation and monitoring by hospital personnel. Therefore, M.R. was not required to go to bed in the circumstances existing that night.

Conflicting evidence of the ensuing events was presented to the ALJ. The version that he believed was as follows: Christopher tried to persuade M.R. to go to bed. When M.R. continued to decline to do so, Christopher began to argue with him. Christopher also would not allow M.R. to use the bathroom. The verbal altercation escalated.

Sharon Jones, another human services assistant, came to the scene at the request of another employee to assist in de-escalating the situation. Jones told Christopher to calm down. At about this time, another employee contacted Jeffrey, who came to the scene with another individual.

Appellants then took M.R. into a bedroom where they both hit, punched and kicked M.R., as witnessed by Orlando Askie, the nurse's aide with whom Christopher had been conducting the twoon-one monitoring of M.R. In this bedroom, Jones did not see either appellant strike M.R., but she saw M.R. punch Jeffrey.

At Jones' suggestion, M.R. was taken to the observation room, which contained a restraint chair. Appellants took M.R. into that room. When Jones entered this second room, she saw M.R. on the floor being beaten and kicked by both appellants. An emergency code was then called, other staff responded, and the incident was brought to a conclusion.

In the aftermath of the physical incident, witnesses were required to prepare statements of what they saw. Jeffrey was a shop steward. He attempted to exercise his authority from that position by directing witnesses how to write their statements.

He told witnesses they should indicate that M.R. was assaulting appellants, who were merely trying to defend themselves and appropriately restrain M.R. When Michael Gewurtz, a supervisor of nursing services, instructed Jeffrey to stop attempting to influence witness statements, Jeffrey did not immediately comply. Further, while Gewurtz was holding the written statements, Jeffrey grabbed them from his hands.

Both appellants testified and provided a benign version of the events, which the ALJ rejected. According to them, M.R. became agitated and belligerent without provocation, in response to which they were merely attempting to defend themselves and appropriately restrain him in accordance with all applicable procedures and regulations. Appellants also presented other witnesses in an effort to corroborate their version of the events.

The evidence presented before the ALJ included video recordings which captured some aspects of the events, including a portion of appellants' assault on M.R. and the interaction between Jeffrey and Gewurtz. The ALJ watched the video, during the course of which witnesses provided explanatory narration of some of the events.

After hearing all of the testimony and reviewing all of the evidence, the ALJ made these findings:

The appointing authority must show by a preponderance of the credible evidence that Christopher and Jeffrey Glosson abused a patient. This has been done. Mr. Askie and Ms. Jones testified credibly and though each saw the matter a bit differently, both witnessed abuse. Mr. Askie thought the entire incident could have been avoided had Christopher simply let M.R. be. He saw the beating commence in the first bedroom and continue in the second bedroom. Ms. Jones thought that the patient actually punched Jeffrey Glosson in the first bedroom and was thereafter subdued appropriately. She saw abuse; however, in the second room as both Jeffrey and Christopher stood over M.R. punching and kicking him.

While employees are certainly entitled to defend themselves, they may not lash out at a patient. Moreover, the entire incident might have been avoided had Christopher simply yielded when the patient exhibited a reluctance to go to bed. The video is also of some support. While most of the action takes place inside bedrooms and away from the cameras, it does seem from a few frames that the patient was on the ground in the second bedroom. It is noteworthy as well that the patient seems relatively calm walking in the hallway to and from these bedrooms. I am not persuaded that he instantly became aggressive on entering these rooms.

The charge of insubordination against Jeffrey Glosson is established. Mr. Gew[u]rtz credibly related that Jeffrey sought to influence the statements of witnesses and when directed to stop did not immediately comply. Jeffrey also grabbed at the statements after relinquishing them to Mr. Gew[u]rtz. This sequence would under other circumstances merit a suspension.

The ALJ then noted that neither appellant had any prior consequential history, but, "[n]onetheless, patient abuse being a most serious offense, one incident is sufficient for removal." He therefore ordered that both appellants be dismissed from their positions with DHS.

Appellants sought administrative review with the Commission. They filed exceptions, and DHS filed cross-exceptions. Upon its review and independent evaluation of the complete record, the Commission accepted and adopted the findings of fact and conclusions contained in the ALJ's initial decision. It accordingly issued its final decision, from which this appeal is taken.

On appeal, appellants essentially restate the credibility arguments they made in the administrative proceedings, which were rejected by the ALJ and the Commission. They summarize their argument as follows:

The Appellants were following policies and procedures, in dealing with a very difficult, violent and manipulative Patient, with no Supervisory Staff present. They maintained a safe environment for the other thirty eight patients. There were no significant injuries to Patient, other Patients and/or Staff that night. Therefore Appellants, should not have [been] terminated from their employment.

Our role in reviewing an agency decision is limited. In re Taylor, 158 N.J. 644, 656 (1999) (quoting Clowes v. TerminiX Int'l, Inc., 109 N.J. 575, 587 (1988)); Brady v. Bd. of Review, 152 N.J. 197, 210 (1997). We must give deference to the decision, unless it is arbitrary, capricious, unsupported by substantial credible evidence in the record as a whole, or is in violation of express or implicit legislative policy. In re Distrib. of Liquid Assets, 168 N.J. 1, 10-11 (2001); Taylor, supra, 158 N.J. at 656-57; R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999) (citing Pub. Serv. Elec. & Gas Co. v. N.J. Dep't of Envtl. Prot., 101 N.J. 95, 103 (1985)); Karins v. City of Atl. City, 152 N.J. 532, 540 (1998); Brady, supra, 152 N.J. at 210-11; In re Petition of S.D., 399 N.J. Super. 107, 121 (App. Div. 2008) (citing In re Musick, 143 N.J. 206, 216 (1996)); Boardwalk Regency Corp. v. N.J. Casino Control Comm'n, 352 N.J. Super. 285, 300-01 (App. Div.), certif. denied, 174 N.J. 366 (2002). Accordingly, we must determine whether the agency's "'findings . . . could reasonably have been reached on sufficient credible evidence present in the record,' considering 'the proofs as a whole,' with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Close v. Kordulak Bros., 44 N.J. 589, 599 (1965) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)).

"[I]t is not our function 'to substitute [our] independent judgment for that of [an] administrative' agency, such as [the Commission], 'where there may exist a difference of opinion concerning the evidential persuasiveness of the relevant [proofs].'" In re Certificate of Need Granted to the Harborage, 300 N.J. Super. 363, 379 (App. Div. 1997) (quoting First Sav. & Loan Ass'n v. Howell, 87 N.J. Super. 318, 321-22 (App. Div. 1965), certif. denied, 49 N.J. 368 (1967)). Further, we should not "'weigh the evidence, determine the credibility of witnesses, draw inferences and conclusions from the evidence, or resolve conflicts therein.'" Ibid. (quoting De Vitis v. N.J. Racing Comm'n, 202 N.J. Super. 484, 489-90 (App. Div.), certif. denied, 102 N.J. 337 (1985)).

Applying this highly deferential standard, we are satisfied from our review of the record that the factual findings made by the ALJ and adopted by the Commission are well supported by substantial credible evidence in the record. Accordingly, the decision is not arbitrary, capricious or unreasonable. We affirm substantially for the reasons expressed by the ALJ and adopted by the Commission in its final decision.



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