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In re Patel

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 19, 2010

IN THE MATTER OF MAHIPAT PATEL.

On appeal from the New Jersey Civil Service Commission, Docket No. 2008-763.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 27, 2010

Before Judges R. B. Coleman, Lihotz and J. N. Harris.

Mahipat Patel appeals from the Final Administrative Action of the New Jersey Civil Service Commission (the Commission) which accepted and adopted the June 30, 2009 Initial Decision by the Administrative Law Judge (ALJ) which upheld Patel's removal from employment as a security guard with the Bergen County Sheriff's Office (Sheriff's Office) due to his unfitness to perform the duties of the job.*fn1 We affirm.

Appellant was employed by the Sheriff's Office since 2002 as a security guard with duties including operation of metal detectors, magnetometers and x-ray machines, to screen individuals for weapons and contraband as they enter court buildings. According to the testimony of Lieutenant Donald Filicetti, appellant approached him and Sergeant Doug Guido on November 15, 2006, asking them for help with satellites that were "watching him in his house and in his car that were being run by the government or an insurance company. They'd been doing it for ten years approximately." As Filicetti recounted:

[Appellant] was very unhappy with this. Basically, he said they -- they -- they watch him in his house. They watch him in his car and he -- he wanted it to stop. He didn't know why they were doing this to him and his family, but they could do it to anybody whenever they wanted and he kept using "they," like I don't know who exactly he was referring to other than the government or the insurance company and he wanted us to see if we could make it stop.

After appellant's complaints, Filicetti told appellant to return to his post while he and Guido contacted their superior officers about what appellant had told them. Filicetti was directed to speak with Lieutenant Duran, the training and examination coordinator. Duran, Guido and Filicetti thereafter called appellant back to the Court Security Office to speak with appellant again. Appellant reiterated that "the government [is] watching him," that he has no privacy, and he is requesting help from them. Filicetti sent Patel home and ordered him to return at 2:00 p.m. the following day. On that day, November 16, 2006, a psychological evaluation with Dr. Daniel Schievella was arranged for Patel. Dr. Schievella holds a Ph.D. in clinical psychology and specializes in law enforcement personnel and fitness for duty examinations. Sergeant James Hague was ordered to take Patel to Schievella's office for the evaluation. Hague testified that on the car ride to Schievella's office, he informed appellant that "because... of the comments that he made to Lieutenant Filicetti, [] he had to go speak to the doctor" as a condition of his employment.

Testifying regarding his first encounter with Patel, Schievella testified that Patel indicated that "he didn't really belong here. He didn't need to see a psychologist and that what he really needed to do was speak to the insurance companies and the government to clear up the confusion." Schievella also stated that at this meeting, Patel refused to comply with the fitness for duty evaluation. After refusing to speak with Schievella in his office, Patel finally acquiesced to an interview in the waiting room if Hague was allowed to be present. Despite being informed on a "minimum of six occasions directly that if he did not comply [with the examination] he would not be able to return to work and would be dismissed from employment," throughout the session in the waiting room, Patel still refused a psychological examination and engaged only in a limited discussion with Schievella about his religious beliefs and family life.

After the interview, Hague returned Patel to the Sheriff's Office where Chief William Broughton immediately suspended Patel based on his failure to submit to the "fitness for duty" examination. Though the psychological evaluation had not been complete, Schievella concluded, based on the clinical evaluation and Patel's past work performance, that Patel "presents as filling the Diagnostic and Statistical Manual (IV) diagnostic criteria for Paranoid Schizophrenia." Additionally, Schievella found that

[Patel's] history of insubordinate, argumentative, and combative interchanges present a consistent pattern of behavior.*fn2

These behaviors suggest that he is unable to adequately fulfill his duties as a security officer and leaves the welfare of the office he protects at risk.

His non-compliance, delusional thinking, refusal to accept any psychological intervention and general state of agitation leave me no recourse but to recommend that he is unfit for duty and that his employment with the Bergen County Sheriff's Department be terminated.

Patel was charged with a Preliminary Notice of Disciplinary Action (PNDA), dated November 20, 2006, for failure to submit to a fitness of duty examination when ordered as an act of subordination.*fn3 Filicetti served the PNDA at Patel's home and spoke with his daughter Parul Patel. Thereafter, Patel agreed to participate in an examination with Schievella.

Regarding the second clinical interview, Schievella's testimony and report dated December 6, 2006, indicate that Patel denied having refused to take the psychological tests during the prior month, denied ever arguing with co-workers, denied ever receiving reprimands, and denied having ever stated that an insurance company was surveilling him. Schievella determined that these statements suggested "a pattern of untruthfulness." Schievella stated that Mr. Patel fails to recognize any lapses in reality testing and fails to acknowledge any shortcomings in his behavior. He is poorly motivated and inaccessible to any therapeutic treatment.

At best, Mr. Patel appears to be over ideational and in need of excessive time in mastering tasks presented to him. At worst, he presents as someone episodically agitated and likely suffering from delusional thought.

Schievella's "overall observation" of the psychological testing component performed on appellant during the second meeting was that "there were some indicators here of expansive qualities which can be seen in individuals with -- with grandiose kinds of tendencies" but his psychological testing was unable to establish any kind of psychosis. Again in his second report, Schievella concluded that Patel was "unfit for duty" and recommended his termination. Patel was served with a second PNDA charging him with an inability to perform duties based on the second fitness for duty evaluation.

A formal hearing was held on April 10, 2007, after which a Final Notice of Disciplinary Action was served upon Patel removing him from his position as a security guard, effective November 16, 2006. Patel appealed that departmental determination and requested a hearing before the Office of Administrative Law (OAL). At that hearing, Schievella's testimony was consistent with his reports. He also detailed the methods used in a fitness for duty evaluation which involve:

(1) a review of background material, (2) a battery of psychological tests and (3) clinical interviews.

Over the objection of Patel's counsel, the ALJ permitted Schievella to testify regarding Patel's background information. Specifically, documents were admitted and read into the record as "part of the history" pertinent to the evaluation that were written by people within the Sheriff's Office. Schievella explained that a fitness for duty examination consists of background material and "what has been the course of the behaviors throughout [the officer's] tenure... [if] there have been any disciplinaries, have there been any oral reprimands... commendations and awards...."

At the OAL hearing, Patel did not testify, nor did he present any testimony from a medical professional to rebut the testimony and opinions of Schievella. Patel's daughter Parul Patel testified that her father saw a "Google Earth" computer program demonstration showing that any address on earth can be pictured from satellites in space. She also mentioned that he received a letter from Prudential Insurance Company referring to assistance with the use of modern technology. Parul explained that she believes the "Google Earth" images and insurance letter incidents are what appellant referred to when he approached his supervisors about his concerns of surveillance.

Relying on Schievella's unopposed expert testimony and fitness for duty reports, testimony of appellant's co-workers and supervisors, and appellant's history, the ALJ found that: the appointing authority has proven by credible evidence that appellant is delusional and suffers from paranoia. In addition, I FIND that appellant has exhibited a consistent pattern over several years of being rude and argumentative with superiors, colleagues and members of the public, that he has committed repeated security breaches at his post and that he has had difficulty controlling his impulses and exercising sound judgment in performing his responsibilities

....

Appellant's duties entailed courthouse security and involved interaction with the public and controlling the flow of visitors... this important and sensitive work, involving public safety, involves good judgment and patience rather than the egocentric belligerence exhibited by appellant. In these respects, appellant's work history with its episodic inappropriate behaviors belied an ability to fulfill the responsibilities of a security guard competently.

The ALJ further noted that the vigorous cross-examination of Schievella did not undermine his methods, analysis, or conclusions and that the prior episodes of misconduct reviewed by Schievella bore on Patel's fitness for duty.

In its Final Administrative Action issued on June 30, 2009, the Commission accepted and adopted the ALJ's Findings of Fact and Conclusions of Law, as well as the recommendation to uphold removal as the appropriate penalty. After summarizing the testimony at the OAL hearing and the issues raised in Patel's exceptions, the Commission observed that "[t]he ALJ provided well reasoned responses to the appellant's arguments which the Commission concurs with." In particular, the Commission "note[d] that whether the appellant met the technical requirements for a specific mental disorder is not relevant. The relevant question is whether the appellant was fit for duty. In the instant matter, it is clear that he was not."

I.

On appeal, Patel argues that no correlation exists between any evidence of Patel's personality traits and the charged inability to perform duties, and that, therefore, the agency decision is not supported by the record and is arbitrary and capricious. Patel argues the decision is infirm because the tribunal relied on Patel's prior history as proof of his present physical ability to actually perform the duties of a security guard. He also asserts the penalty of removal is arbitrary and capricious because the record is devoid of any finding that he will not be able to perform the duties of a security guard in the future. We have carefully considered these contentions, and the arguments advanced by Patel in support of them, and we find them unpersuasive and unworthy of lengthy discussion. R. 2:11-3(e)(1)(D). However, for the sake of completeness, we briefly address each of appellant's contentions.

II.

We first acknowledge our understanding that when error in a factfinding of a judge or administrative agency is alleged, the scope of appellate review is limited. Karins v. City of Atl. City, 152 N.J. 532, 540 (1998). The judicial role in reviewing decisions of administrative agencies is "to determine whether the administrative action was arbitrary, capricious or unreasonable." Burris v. Police Dep't, Twp. of W. Orange, 338 N.J. Super. 493, 496 (App. Div. 2001) (citing Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). The precise issue is whether the findings of the agency could have been reached on substantial credible evidence in the record, considering the proofs as a whole. Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Although appellate courts must give deference to an administrative agency charged with interpretation of the law, the courts are not bound by the agency's legal opinions. G.S. v. Dep't of Human Servs., Div. of Youth and Family Servs., 157 N.J. 161, 170 (1999); see also Mayflower Sec. v. Bureau of Sec., 64 N.J. 85, 93 (1973). Moreover, "if substantial evidence supports the agency's decision, 'a court may not substitute its own judgment for the agency's even though the court might have reached a different result.'" Carter v. Twp. of Bordentown, 191 N.J. 474, 483 (2007) (quoting Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992)).

A public employee who is protected by the provisions of the Civil Service Act may be subject to major discipline for a wide variety of offenses connected to his or her employment. The general causes for such discipline are enumerated in N.J.A.C. 4A:2-2.3(a). Here, appellant has been charged with violating N.J.A.C. 4A:2-2.3(a)3, inability to perform duties.

In re Vey, 124 N.J. 534, 541 (1991), identifies the steps required to validate psychological testing in the workplace:

(1) "the employer must specify the trait or characteristic that the selection device is being used to identify or measure"; (2) "the employer must establish that the particular trait or characteristic is an important element of work behavior"; (3) "the employer must 'demonstrate by professionally acceptable methods that the selection device is predictive of or significantly correlated with the element of work behavior identified in the second step.'" Ibid. (citations omitted). We are satisfied that the ALJ and the Commission followed the proper procedures in accepting Schievella's conclusions concerning Patel's unfitness for duty.

First, while unopposed by any other evidence, the ALJ considered Schievella's two "fitness for duty" reports and his testimony over the course of almost four days.*fn4 Consistent with Vey, Schievella explained to the ALJ the three components of the "fitness for duty" test thereby identifying his "professionally acceptable method" of testing. Id. at 541. Also, Schievella testified that he was familiar with the job of security guards, thus indicating that his conclusions considered that Patel did not have the particular traits necessary to maintain his position. Appellant's argument that there is no basis in the record to justify a correlation between his personality traits and the condition of unfitness for duty is lacking in merit. The record here adequately supports the findings of the ALJ and the Commission that there is a nexus between Patel's paranoid personality and his job performance. His paranoid personality exhibited characteristics such as suspiciousness, lack of trust, interpreting others' actions as threatening or demeaning, perceiving attacks on his character, and not forgiving insults.

It has been observed that "[a]t first glance, it just does not seem... to be a sign of unfitness that a police officer be bold or suspicious." Vey, supra, 124 N.J. at 543. However, here the ALJ determined that appellant was quarrelsome, insubordinate, rude, obsessive, untruthful and chronically agitated, and that he has difficulty controlling his impulses. Such characteristics, found by the ALJ and accepted by the Commission, do not harmonize with the duties of a security guard.

Patel did not testify at the OAL hearing and did not present any opposing testimony from a medical professional supporting his position. Thus, the only evidence in support of his position at the hearing was his daughter Parul's testimony. That testimony was unconvincing and lacked the persuasion to rebut or discredit Schievella's findings.

We are satisfied the ALJ and the Commission had an abundance of evidence for its conclusions. Thus, the Sheriff's Office, through Schievella, presented a sufficient correlation between appellant's paranoid tendencies and suspicions and its determination that he is unfit for duty.

III.

We next address Patel's argument that the decision of the Commission was arbitrary and capricious due to the improper consideration of appellant's prior history as part of the findings of fact. We reject that argument.

Schievella considered Patel's history as an indicator of his fitness to perform the job. He examined Patel's background including his disciplinary history and testified that the review indicated that Patel "[did] not really follow[] the rules, the procedures, the guidelines that have really been set forth before him by his command staff, by authority." Additionally, Schievella testified that considering an employee's background history is a proper inquiry for a "fitness for duty" examination in order to determine whether any patterns of behavior are present.

Appellant's disciplinary background led Schievella to opine that appellant was confrontational and inattentive to security concerns. The ALJ and the Commission agreed with the expert testimony and found that appellant, due to his psychological condition, could not perform his security duties, which require close contact with the public and co-employees. In light of our deference to that finding, we cannot agree that the ultimate decision was arbitrary or capricious.

IV.

Finally, Patel contends that his removal from the position of security guard is arbitrary and capricious because "the record does not disclose any findings that [appellant] would be unfit for duty in the future with treatment designed to address the physical condition supposedly limiting his ability to perform the duties required of a security guard." This argument is without merit. Appellant cites no legal authority supporting his contention that the ALJ or the Commission must prove he will remain limited in his physical or psychological condition in the future to sustain his removal.

Notably, during the second evaluation by Schievella, appellant denied ever being disciplined for disobedience, denied any prior confrontation with co-workers, denied ever being suspended, and denied his past refusal to submit to a psychological evaluation. As a result of those denials, Schievella reasoned that appellant "fails to recognize any lapses in reality testing and fails to acknowledge any shortcomings in his behavior. He is poorly motivated and inaccessible to any therapeutic treatment." This suggests a future inability to benefit from treatment.

In Klusaritz v. Cape May County, 387 N.J. Super. 305, 317 (App. Div. 2006), we found that the termination of the appellant from his position as a government accountant was proper based on a "reasonable assumption that nothing would change." There, appellant maintained that his past work was proper and any report of inadequacy was due to a conspiracy against him, despite clear findings to the contrary at the hearing. Ibid. Similarly, at bar, (1) appellant does not admit to any past or present physical incapability and (2) there is evidence that he is or one could reasonably assume that he would be unresponsive to treatment. Therefore, we reject appellant's contention that it was arbitrary or unreasonable for the Commission to conclude that appellant would continue the same present behavior if reinstated.

For these reasons, we find ample support in the record for the Commission's final determination that appellant was in violation of N.J.A.C. 4A:2-2.3(a)3, warranting removal.

Affirmed.


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