January 13, 2012
IN THE MATTER OF EMANUEL AMADI, NEWARK.
On appeal from a Final Administrative Action of the Civil Service Commission, No. 2010-367.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2011
Before Judges Messano and Yannotti.
Emanuel Amadi appeals from the final decision of the Civil Service Commission (CSC) upholding the decision of respondent, City of Newark (Newark), to remove him from his position as housing development analyst. The matter was tried as a contested case before an administrative law judge (ALJ), whose factual findings were accepted and affirmed by the CSC in its final decision. We recite the testimony before, and the factual findings made by, the ALJ.
Amadi received a permanent appointment to his position in August 2004. He lived with this wife and three children on Elizabeth Avenue in Newark. Amadi claimed to have told "the appropriate staff person . . . of his address change," but the issue was contested by Newark, which "claim[ed] it had ['multiple addresses'] on file." The ALJ determined that Amadi "lived [on] Elizabeth Avenue . . . throughout the relevant period and that [Newark] was properly advised of that address."
Amadi was supervised by Ronald McEachin, with whom he "did not have a good relationship." In the spring of 2009, Amadi's plans to use vacation time to visit his native Nigeria from April 20 through May 18 were approved. His wife and children did not accompany him. It was undisputed that Amadi "did not return to his departmental position until July 20, 2009." As the ALJ succinctly stated: "The reasons for the two-month delay in reporting back to work[,] and whether it can or should be excused by his employer[,] [wa]s at the heart of the present disciplinary matter."
Amadi's visit took him to the city of Owerri, "several hundred miles" from Nigeria's capital. Although he arrived in good health, he claimed he was diagnosed with malaria and admitted to a local hospital around May 10. Amadi and his wife, with whom he had phone contact, attempted to reach McEachin and left messages advising that Amadi would not return to work as planned.
Amadi was discharged from the hospital "on June 16 . . . in a very weak condition," and was subsequently robbed and beaten when he went to a local bank. He was readmitted to the hospital and not released until July 17, after which he flew back to the United States. Amadi claimed that he tried to personally reach McEachin a total of four times, "twice during the first period of hospitalization and twice during the second. Otherwise, he counted on his wife to communicate with [Newark]."
When he returned to his position on July 20, Amadi was unaware that Newark had already terminated him. He brought a "short note from the medical director of the [Nigerian] hospital," and supplied a longer note in September. Both notes indicated that Amadi was hospitalized for bronchial pneumonia from May 10 through June 16, and re-hospitalized on June 21 "due to the assault." The ALJ noted, "[T]hese medical statements contradict [Amadi's] own testimony regarding the timeline of events except with respect to the assault."
Amadi's wife, Pauline Ndzie, testified that she called McEachin and told him of the situation when she found out her husband was sick in Nigeria. She also called when Amadi was robbed and re-hospitalized, and told McEachin that she would not re-book a return flight for her husband until she spoke to his doctor in Nigeria.
The ALJ found as an undisputed fact that Ndzie booked the original travel plans for Amadi, which included a departure date of April 21 and a return date of June 19. Ndzie claimed she always booked a later-than-intended departure date to avoid additional charges if plans changed. Ndzie never received any written correspondence from the City at the family home during Amadi's absence.
McEachin claimed never to have actually spoken to Amadi during the time he was in Nigeria. He received a first voice message on May 18, and a woman, "Pauline," who identified herself as Amadi's "friend," called the same day. She called next on June 4 and reported Amadi's continued hospitalization. McEachin asked for phone numbers to reach Amadi in Nigeria, or, alternatively, that Ndzie ask Amadi to call McEachin during regular work hours. Those requests went unanswered until June 22, when Ndzie called and gave McEachin two phone numbers for Amadi's brother in Nigeria. McEachin acknowledged he never tried to reach Amadi at those numbers.
McEachin kept his supervisor, Michael Meyer, apprised of the situation. On June 9, McEachin sent a letter to Amadi by certified mail advising that "he must return to work by June 15 and bring a physician's statement." Newark produced no proof of service.
McEachin claimed that another staff member informed him that Amadi had called regarding the robbery and assault, and the ALJ found that on June 22, Ndzie informed McEachin of the incident. On July 13, McEachin received a message from Amadi that he had been discharged and was returning on July 20.
Meyer authorized the initiation of disciplinary action against Amadi. The first letter notice was sent by regular and certified mail to three different addresses, including his Elizabeth Avenue address, on June 19. The letter advised that Amadi's failure to contact Newark by June 29 would result in disciplinary charges, "including possible termination." No proof of service was produced by Newark.
Notice of preliminary disciplinary action (PDA) was served on July 7 by certified mail at several addresses, including his Elizabeth Avenue address. The PDA charged Amadi with "Resignation Not in Good Standing," N.J.A.C. 4A:2-6.2, and "Other Sufficient Causes," N.J.A.C. 4A:2-2.3(a)(11), including "Absence without official leave," "Failure to follow Leave of Absence Procedure," and "Violation of Policy & Procedures." Amadi was advised he was entitled to request a departmental hearing within five days of receipt. Newark produced proof of payment for the certified mailings, but no proof of actual service by way of a return receipt card.
On July 15, Newark served by certified mail at the same addresses a final notice of disciplinary action (FDA). That notice indicated the original charges were sustained and the "following disciplinary action ha[d] been taken": removal, effective July 9; and resignation not in good standing, also effective July 9. The ALJ found that between the issuance of the PDA and FDA, Meyer became "aware of the fact that [Amadi] had been attacked while in Nigeria," but "did not feel . . . that information was relevant . . . to the continued pursuit of the discipline of removal."
Meyer's review of personnel records revealed that Amadi had "overstayed" a prior visit to Nigeria in 2007. At that time, Amadi's approved vacation ended April 27, 2007, but, because he contracted typhoid fever, he used sick time through May 11. On that occasion, "a doctor was able to fax a note to [Newark]."
The ALJ found it "shocking" that Amadi's supervisors "never suggested to his wife that [Amadi] or she . . . complete an application for extended sick leave, knowing that he was delayed in a Nigerian hospital." She also noted that Newark "failed to produce any evidence supporting successful or even attempted delivery and/or receipt of any . . . notices purporting to [affect] [Amadi's] employment rights."
Critical to the issues on appeal, the ALJ made the following findings and reached the following conclusions:
I also find it hard to believe that appellant did not plan to overstay this visit to Nigeria. Notwithstanding his wife's testimony that they always book flights with an extended return date on the ticket, I do not find this aspect of her testimony to be credible. . . . It simply makes no sense that on April 7[,] she would have booked her husband a flight returning to the United States on June 19[,] when he only had authorization for vacation until May 18, unless he had already planned on [overstaying] the visit.
Frankly, I think the first period of the [overstay] (May 18 through June 19) was planned and only then did certain unexpected events occur, including an attack and maybe an illness. I FIND that there was credible evidence of an assault upon his person but evidence of the remainder of the medical events was vague at best.
Applying these factual findings, the ALJ dismissed "the charges of abandonment." However, she also concluded that Amadi "did not take seriously the consequences of his decisions while in Nigeria." The ALJ determined Amadi stayed beyond his visit and "did not make more than a half-hearted effort to speak with McEachin personally or through his wife. [Amadi] also did not bring back detailed medical information." She upheld the "disciplinary charge of failure to follow leave of absence policy or procedure and . . . being absent without leave."
Turning to "the appropriate sanction," the ALJ noted Amadi had no "prior disciplinary history . . . , notwithstanding that his supervisors might have suspected an unauthorized leave once before." Since Newark "never [gave] [Amadi] warning that he must correct his conduct," the ALJ determined the appropriate penalty was suspension for four months.
Newark filed exceptions to the ALJ's findings and conclusions, arguing, among other things, that removal was appropriate. In particular, Newark contended that the ALJ "recognized [Amadi's] clear plan not to [return to work as scheduled], yet, . . . erred in concluding that [his] actions did not justify and warrant his removal."
In its final administrative decision of May 13, 2010, the CSC adopted the ALJ's findings of fact. It noted, however, that "determin[ation] [of] the proper penalty" was the subject of its de novo review. Citing Henry v. Rahway State Prison, 81 N.J. 571 (1980), and In re Carter, 191 N.J. 474 (2007), the CSC observed that "where the underlying conduct is of an egregious nature, the imposition of a penalty up to and including removal is appropriate, regardless of the individual's disciplinary history," including "a largely unblemished prior record."
The CSC determined:
[I]t is uncontested that the appellant's initial travel plans . . . indicated a departure on April 21, 2009 and a return date of June 19, 2009. In other words, [Amadi's] flight home was initially booked for one month after the date he was supposed to return to work. Regardless of what occurred after June 19, 2009, there is no credible explanation for this booking other than the intent on the part of the appellant not to return to work on the date his approved vacation leave ended. . . . Accordingly, . . . the penalty imposed by the appointing authority was neither unduly harsh nor disproportionate to the offense and should be upheld.
This appeal ensued.
Amadi contends that Newark "failed to comply with N.J.A.C. [4A:2-2.5] regarding service," thereby violating his due process rights, including a right to a "preliminary hearing." He also contends that: the "ALJ's hypothetical assumption regarding the purchasing of tickets was improper and should be voided"; he "did not commit an egregious act"; and the CSC "mistakenly did not apply [p]rogressive [d]iscipline." We find the arguments to be without sufficient merit to warrant extensive discussion, and affirm substantially for the reasons expressed in the agency's final administrative determination. R. 2:11-3(e)(1)(E). We add the following comments.
N.J.A.C. 4A:2-2.5(a) provides that with certain exceptions, "[a]n employee must be served with a [PDA] setting forth the charges and statement of facts supporting the charges (specifications), and afforded the opportunity for a hearing prior to imposition of major discipline." However, we have long held that "procedural irregularities at the departmental level are considered 'cured' by a subsequent plenary hearing at the agency level." Ensslin v. Twp. of N. Bergen, 275 N.J. Super. 352, 361 (App. Div. 1994) (quoting In re Darcy, 114 N.J. Super. 454, 461 (App. Div. 1971)), certif. denied, 142 N.J. 446 (1995). Therefore, to the extent Amadi did not have the opportunity to request a departmental hearing, his due process rights were entirely preserved by the hearing before the ALJ and the de novo review of the CSC.
Turning to the substantive points raised on appeal, our "review of a final agency [action] is limited." Carter, supra, 191 N.J. at 482. "[I]f in reviewing an agency decision an appellate court finds sufficient credible evidence in the record to support the agency's conclusions, that court must uphold those findings even if the court believes that it would have reached a different result." In re Taylor, 158 N.J. 644, 657 (1999). We "will reverse the decision of the administrative agency only if it is arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid. (quoting Henry, supra, 81 N.J. at 579-80) (internal quotation mark omitted).
The ALJ's factual determination adopted by the CSC, that Amadi fully intended to overstay his vacation before he left, is supported by "sufficient credible evidence in the record" Taylor, supra, 158 N.J. at 657, and not the ALJ's "hypothetical assumption." That determination was, in part, based upon the rejection of Ndize's testimony, which the ALJ determined was incredible. That finding was adopted by the CSC.
Regarding Amadi's contentions that his conduct was not egregious enough to warrant removal, and that progressive discipline was required, the Court has said, "[C]courts should take care not to substitute their own views of whether a particular penalty is correct for those of the body charged with making that decision." Carter, supra, 191 N.J. at 486. "[W]hen reviewing administrative sanctions, 'the test . . . is whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness.'" In re Herrmann, 192 N.J. 19, 28-29 (2007) (quoting In re Polk, 90 N.J. 550, 578 (1982)) (additional internal quotations marks omitted).
Here, the CSC determined that before actually leaving for an approved vacation, Amadi planned to overstay the return date by more than one month. In fact, he accomplished this goal, and later supplied a medical note that the ALJ found to be inconsistent with his actual testimony in most respects. His removal from his public position as a result of this conduct does not shock our sense of fairness.
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